Procedural Background

The background of the present case of Puttaswamy comes from the cases prior to this, first “M.P. Sharma”[2] then Second “KharakSingh”[3]on the issue whether Fundamental Rights includes right to privacy in the Constitution[4]. In “M.P. Sharma”[5] the judgement by a bench of 8 judges only held that the American Fourth Amendment[6] which only guarantees “the right of the people in persons, houses, papers and effects, against unreasonable seizures and searches” does not talk about privacy in its entirety even in U.S. and also there is no justification in importing a completely different provision from a foreign country to our country to incorporate it into right against self-incrimination Article 20(3)[7].In “KharakSingh”[8]the judgment by a bench of 6 Judges gave a narrow interpretation about “Personal Liberty”, and various practices of surveillance by police upon a “history sheet” was declared constitutionally valid along with travel restrictions, reporting of presence in the police station, etc. The court also held that the right to privacy does not fall in Article 21 and is not guaranteed by the Indian Constitution.

Taking into consideration the question of the importance of interpretation of Constitution according to the changes occurring in the society with the passage of time, there is a need to innovate judicial pronouncements by referring it to a larger bench. On 18 July 2017, a bench of 5 judges headed by Chief Justice thought of it as fitting that the issue is to be settled by a bench of 9 judges.

Facts

To decide whether the right to privacy is an independent fundamental right guaranteed in Indian Constitution, a 91-year old HC judge (Retd.) bring this case before a 9 judge bench which had been set up on reference from a 5 judge constitution bench.

In the latest case the Aadhaar Scheme of demographic biometric data introduced by the Union Government (which was proposed mandatory by the government to avail government services and benefits) was challenged that it violates the privacy rights of an individual as the software used by UIDAI for the collection of data, processing of it was made by an U.S. Corporation by the name of L1 Identity Solutions Operating Co. Private Ltd. under a contract with Union Government in 2010 leaving a ton of data with them for a period of 7 years which was considered by a three Judges bench of Supreme Court in its order dated 11-8-2015. The Attorney General of India contended that fundamental right to privacy is not present in Constitution on the basis of two decisions: First, “M.P. Sharma”[9]decided by 8 Judges Bench and then, “KharakSingh”[10] rendered by a bench of 6 Judges. The submission on behalf of Attorney General contained the observation that The Indian Constitution neither expressly nor impliedly guarantees nor protect the right to privacy.

Thus the following two questions arose for consideration by the present Bench:

1. Whether the fundamental right of privacy is guaranteed under the Constitution and if so, where is it located and what are its contours?

2. What was the reasoning of M.P. Sharma and Kharak Singh cases and whether those cases are rightly decided?

Ratio Decidendi

The Supreme Court 9 judge bench unanimously recognized that under Article 21 of the Indian Constitution privacy is natural and inalienable part right to life and personal liberty. M.P. Sharma[11] and Kharak Singh[12] overruled by the court to the scope of it not recognizing the privacy as a fundamental right.

 Right to Privacy as a natural right: Puttaswamy holds right to privacy inheres in every individual as a natural right. It is inalienable and attached to every individual as a pre-condition for being able to exercise their freedom.

Justice D. Y. Chandrachud was of the opinion that “natural rights are inalienable because they are inseparable from the human personality and all human beings retain their inalienable rights whatever their situation remains”.[13]Natural inalienable rights play a very significant role in protecting an individual’s right to choice and freedom which is not absolute.[14]Privacy has different aspects which include (i) Spatial Control which means the building of private spheres, (ii) Discretional Sovereignty which means familiar individual selections regarding reproduction decision, faith, and mode of dresses, etc., (iii) Informational Control to have control over personal information of an individual.[15]

Justice Chandrachud’s dissenting opinion stated that Aadhaar is unconstitutional from the very beginning when it was passed in the parliament as a money bill, Art. 110[16] he argued that for a bill to be categorized as Money Bill it must contain “only provisions” covers all or any issue set out in Article 110 clause 1(a) to (g). The expression “if it contains an only provision dealing with all or any of the following matters, namely…,” firstly, the expression “if” indicates a condition being fulfilled that the deeming fiction of a bill being money bill for the purpose of the chapter will arise. Secondly, to be a money bill, should have only those provisions which are preferable to clauses (a) to (g) that condition is not fulfilled by the Aadhaar[17] in the present case. Thirdly, it deprived out Rajya Sabha from altering the provisions of the bill by carrying out amendments and also passing a bill as a money bill when it does not qualify for it, damages the delicate balance of bicameralism which is a basic part of Indian constitution. Chandrachud J. also said that the collection of data through verification log under Aadhaar, it is possible to locate the places of transaction carried out by an individual over a period of past 5 years. He also noted that it was possible to track the location of an individual through the Aadhaar database, even without the verification log. “The architecture of Aadhaar possesses a great risk of potential surveillance activities through the Aadhaar database”.

It was held that when an individual is out in public place his privacy does not vanish or taken away, further right to privacy is both a positive right and negative right to be protected by the state from being interfered. In India, it is very important to bring measures or techniques to protect the data of each individual citizen of the country.

Justice Sanjay Kishan Kaul concurred that “Privacy is a concomitant of the right of the individual to exercise control over his or her personality and life and personal liberty are not creation of the constitution instead these rights are recognized by the Constitution as inhering in each individual as an intrinsic and inseparable part of human element which dwells within”.[18]“The dignity of Individual, equality between human beings and the quest of liberty are foundational pillars of Indian Constitution. There is an inseparable relationship between the right to life and personal liberty with dignity”.[19]

S. A. Bobde J. Concurred personal freedom is a state of mind where one is free from intervention whether public or private and is free to act and take any decision of his choice.“These intrusions may be physical or visual, and may take any of several forms including peeping over one’s shoulder to eavesdropping directly or through instruments, devices or technological aids”.[20]Protection isn’t restricted just to insinuate put like room or washrooms but it runs with a man wherever he is, even in open place. Security has a profound proclivity with separation and such thoughts as rest, isolation, classification and mystery and closeness yet additionally isolation is not constantly basic to protection. “The vigor and vitality of various expressive freedom guaranteed by the Constitution depend on the existence of the corresponding guarantee of cognitive freedom”.[21]

The decision of court in the present case also took consideration of petitioner’s submission on M.P. Sharma case &Kharak Singh case based on the rationale explained of “A.K. Gopalan”[22] in which it was interpreted that all the provisions of fundamental rights are different protection which was a bad law held by a bench of 11 Judges in “Rustom Cavasjee Cooper”[23]. It was submitted by the petitioner that decision in M.P. Sharma&Kharak Singh is not valid. Petitioners submitted that decision by a bench comprising 7 judges in “Maneka Gandhi”[24], approved the judgment by K. Subba Rao in Kharak Singh and overruled the judgment of the majority.

The Supreme Court also took account of various other judgments in which privacy was held a constitutionally valid fundamental right like in “Gobind”[25], “R. Rajgopal”[26], “PUCL”[27]. It was needed to reconsider and reevaluate the matter of privacy by a larger bench of Supreme Court because of the fact that the cases mentioned above were held by benches smaller than in case of M. P. Sharma and Kharak Singh.

Justice Chelameshwar stated that privacy should not only be guaranteed in an abstract form but also should be applied in the empirical form of an individual’s life e.g. freedom of choosing not to live, right of free from forceful feeding, right to make religious signs on one’s personal body, etc.

Justice Nariman opined that the privacy aspect is classified into the freedom to choose personal preferences and security of information belonging to a person.

Abhay Manohar Sapre J.stated that to achieve the constitutional objective of liberty, fraternity and dignity of an individual it is necessary to ensure freedom of movement, speech, and expression which are an inherent part of privacy right.

The opinion of most of the Judges in the present case states that Aadhaar is constitutionally valid and the procedure through which Aadhaar Act[28] was passed as money bill was also constitutionally valid and the reasoning behind this decision is that (i) For the purpose of providing subsidies, financial benefits and amenities Consolidated Fund of India will be used due to which Aadhaar Act comes within the preview of the money bill under Article 110[29], (ii) Section 7, 24, 25[30]and the Preamble supports its classification as a money bill, (iii) The Aadhaar Act has ancillary provisions, but they are related to the pith and substance of the legislation which is the targeted delivery of subsidies and benefits. At the same time the bench in present case S. 57 of Aadhaar[31] was held unconstitutional which provided a draconian power to both the state and private entities to use Aadhaar of citizens which is detrimental to privacy of every individual it can be misused and also the court held that Aadhaar is not mandatory to link with Bank Accounts, school admissions etc. but is necessary to link with PAN (Permanent Account Number) to file Income Tax returns.

Justice Sikri validated the constitutionality of Aadhaar by giving various reasons and a few are that (i) “It is better to be unique than being best, Aadhaar means unique” and due to its uniqueness it can’t be reassigned to anyone else. Also, UIDAI (Unique Identification Authority of India) is a statutory body under the government of India for providing identification. (ii) He has observed that minimal data is collected for the purpose of collecting identity under Aadhaar. Collecting of data technique under Aadhaar includes various technological advancements like biometric signatures, 12 digits unique identification number so there are few chances of making fake data or identities. There is a fundamental difference between Aadhaar and other identity proofs so it eliminates any chance of duplication. (iii) Aadhaar has empowered marginalized sections of society by providing them identity as in various bucolic areas of the country people do not have proper documents due to which they can’t avail any financial benefit or subsidy but due to the introduction of Aadhaar, they got their identity.

Held

Solving the situation in terms below, the Supreme Court bench comprising of 9 judges held

per curiam

·Article 21 right to life and personal liberty also guarantees the right to privacy which is inherent in it. Both the decisions are given in Kharak Singh and M. P. Sharma to the degree of supporting that right to privacy is not guaranteed in the Indian Constitution is quashed.

The majority judgment of 5 Judges Chief Justice Dipak Misra, A M Khanwilkar J., Sikri J., Ashok Bhushan J., D Y Chandrachud J. held that Aadhaar is constitutionally valid along with the following points:

The bench struck down the national security exception under of Aadhaar Act, 2016.

Court also agreed that telecom service providers can’t seek to link  Aadhaar and Chandrachud J. was also in favor of deleting the data collected by mobile service providers.

Justice Sikri upheld the validity of Aadhaar being passed as a money bill by the parliament, also said that data collected by UIDAI for Aadhaar enrolment has empowered and gives identity to marginalized sections of society. It was also held that no child can be deprived of the benefits of any schemes for not being able to bring their Aadhaar Number. The Court also held that Aadhaar is not mandatory for admissions in schools, CBSE, NEET, UGC, etc.

Aadhaar is not mandatory to be linked with bank accounts now but is compulsory to be linked with PAN for filing of Income Tax Return.

The bench in present case upholds S. 7 of Aadhaar Act[32] which deals with grant of subsidies, welfare benefits and struck down S. 57[33] which states that private entities can entail Aadhaar thus, now no private company can ask for Aadhaar.

The court also said that making forged Aadhaar card is not possible but the government needs to ensure that there should not be any misuse of Aadhaar data by illegal immigrants and it is important to make robust data protection law as soon as possible.

Critical Analysis

After the historic Keshavanand Bharti case[34] the present case is “second longest” in terms of days of hearing in the history of Indian law. It is important to debate over the propositions and the interpretations of the court in this particular case which will inevitably shape the way of deciding future cases by courts. The judgment of the present case is not based on majority opinion but in a real sense, it comprises of plurality opinion by giving a wide interpretation of different aspects of privacy. 4 out of nine judges had a plural opinion but at the end of the verdict, they all signed an order which actually binds future judgments and thus the judgment of the present case is derived.

The Aadhaar issue was not only an issue of informational self-determination but is also a question of constitutionalism as to what extent an individual’s information can be controlled by the government and what are the measures to protect the information from falling in the wrong hands. The recent judgment of U.S. Supreme Court in Timothy Carpenter v. the United States[35]it was examined that every time when a cell phone connects to radio antenna it leaves “Cell Sites” which produce a time record called “Cell-Site Location Information” (CSLI) which is then used by companies proving services. The court concluded that data generated by cell phone companies cannot be used by the government agent for tracking a person except in case of authorization through warrant otherwise it is a clear violation of test of “reasonable expectation of privacy” and upholds the validity of privacy as inextricable from an individual.

These judgments on privacy acted as a panacea against all the executive acts. The dissenting opinion of K. Subba Rao in Kharak Singh Case[36]was very apt for the status quo of right to privacy as he gave a broad interpretation to personal liberty and restriction on movement. He said that in the era of advanced civilization psychological restraints are more effective and powerful than physical restraints which include “endanger physical fear channeling one’s fear through anticipated and expected grooves”. Further, every democratic country guarantees domestic life, happiness mental or physical and security which are basic elements of living a humane life. An individual’s privacy is not only protected in his personal space but should also be protected in the public sphere wherever he goes; his privacy goes along with him “in the last resort, a person’s house where he lives with his family is his castle” where he is physically and mentally free from any intrusion.[37]

The validation of Aadhaar is completely justified because it is a unique 12-digit identification number which cannot be forged, makes it different from other id proofs and it confirmed the identities of those who are backward and does not possess any id proof. Through this judgment, privacy right has reached at its zenith and has empowered individuals against the draconian acts of state. Puttaswamy case is proved to be open sesame for broad and prospective interpretation which will have a galvanizing impact on future cases regarding Fundamental Rights.

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[1] M.P. Sharma v. Satish Chandra, A.I.R. 1954 S.C. 300.

[2] Kharak Singh v. State of U.P. A.I.R. 1963 S.C. 1285.

[3] INDIA CONST.

[4]Supra note 2.

[5]U.S. CONST. amend. IV.

[6]INDIA CONST. art. 20, cl. 3.

[7]Supra note 3.

[8]Supra note 2.

[9]Supra note 3.

[10]Supra note 2.

[11]Supra note 3.

[12]Arthur L. Harding, Natural Law and Natural Right62-63 (ed. 1955).

[13]Edwin W. Patterson, A Pragmatist looks at Natural Law and Natural Rights(1955)

[14] Bhairav Acharya, The four Parts of Privacy in India,50  Econ Polit Wkly 22 ,  32 (2015).

[15]INDIA CONST. art. 110.

[16]The Aadhar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016, No. 18, Acts of Parliament, 2016.

[17]Buck v. Bell 274 U.S. 200, 205 (1927); Korematsu v. Unites States 323 U.S. 214, 232 (1944).

[18]Siddharth Mukherjee, The Gene: An Intimate History78-85 (Penguin Books Ltd., 2016).

[19]Pavesich v. New England Life Insurance Co. 122 Ga 190, 196 (1905) (Supreme Court of Gregoria).

[20]Bryan, Garner,Black, H.C. “et al.”, Black’s law dictionary2752, 3783( 8^thed.2004); Samuel D. Warren and Louis D. Brandeis, The Right to Privacy, 4 HERV L Rev193 (1890).

[21]A.K. Gopalan v. State of Madras, A.I.R. 1950 S.C. 27.

[22]Rustom Cavasjee Cooper v. Union of India, A.I.R. 1970 S.C. 564.

[23]Maneka Gandhi v. Union of India, A.I.R. 1978 S.C. 597.

[24] Gobind v. State of M.P., A.I.R. 1975 S.C. 1378.

[25] R. Rajgopal v. State of T.N., A.I.R. 1995 S.C. 264.

[26] PUCL v. Union of India, A.I.R. 1997 S.C. 168.

[27]Supra note 17.

[28]Supra note 16.

[29]Supra note 17.

[30]Id.

[31]Supra note 17.

[32]Id.

[33] Keshavanand Bharati and Ors. v. State of Kerala and Ors., A.I.R. 1973 S.C. 1461.

[34] Timothy Ivory Carpenter v. the United States 585 U.S. 1, 1(2018).

[35]Supra note 3.

[36]Supra note 22.