INDORE INSTITUTE OF LAW

(Affiliated to D.A.V.V. & BCI)

B.A.LL.B. (HONS)
SUBJECT: POLITICAL SCIENCE
TOPIC: Justifying privacy: The Indian Supreme Court case
analysis
SUBMITTED TO:

Asst. Prof. Mrs. Madhuri Modi

SUBMITTED BY:

SWATI VERMA [2019/B.A. L.L.B.]

SEMESTER – V

1
 Declaration

I hereby declare that the project entitled “Justifying privacy: The Indian Supreme Court
case analysis ” submitted for the “Political science project" is my original work and the
project has not formed the basis for the award of any degree, associate ship, fellowship or
any other similar titles.

Signature of the Student:

Name of the Student:

Place:

Date:

2
 Certificate

This is to certify that the project entitled, “Justifying privacy: The Indian Supreme Court
case analysis ” submitted by "SWATI VERMA” in partial fulfillment of the requirements
for the "Political Science project” in "B.A.LL.B" at the "Indore Institute of Law" is an
authentic work carried out by him under my supervision and guidance.

To the best of my knowledge, the matter embodied in the project has not been submitted
to any other University / Institute for the award of any Degree or Diploma.

Date:

Signature:

Mrs. Madhuri Modi

Asst. Professor

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 Acknowledgement

"I have taken efforts in this project. However, it would not have been possible without the
kind support and help of many individuals and organizations. I would like to extend my
sincere thanks to all of them.

I am highly indebted to Mrs. Madhuri Modi for their guidance and constant supervision
as well as for providing necessary information regarding the project & also for their
support in completing the project.

I would like to express my gratitude towards my parents & member of Indore Institute of
Law for their kind co-operation and encouragement which help me in completion of this
project.

My thanks and appreciations also go to my colleague in developing the project and

people who have willingly helped me out with their abilities."

SWATI VERMA

Sem V

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Abstract

The opinion authored by Justice Chandrachud in K. S. Puttaswamy v. Union of India has

extensively employed philosophical and comparative materials in justifying a fundamental right
to privacy under the Constitution of India. Here we examine some implications of the reliance on
such materials. We first argue that the court relies on a strong liberty-based zonal view of
privacy. However, its reliance on Aristotle’s views is controversial, and reliance on JS Mill’s
views does not immediately yield a strong zonal argument. The opinion’s aggregation of
‘intimacy-based’, ‘expectation-based’ and ‘other guarantees based’ justifications that are
reflected in decisions in the United States, also presents conceptual difficulties in understanding
the composition of a private zone. We then point out that as in the United States and South
Africa, libertybased justifications in the opinion gradually gravitate towards autonomy,
personhood, and finally, dignity- based accounts. The opinion’s theoretical explanation of the
relationship between these concepts however, makes their individual content elusive, and
warrants ironing out of some inconsistencies that emerge. Dignity-based views may not yield a
zonal argument that the libertybased views employed by the opinion earlier. We then indicate
that dignitybased arguments for privacy do have to contend with certain differences with liberty-
based views owing to their distinct historical evolution in law, and in light of the liberty-
restraining potential of dignity.

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Table of content

S. No. Topic Page no.

01 Introduction

02 Why was a nine-judge bench

constituted to decide upon the
right to privacy?

03 How do we read the

Puttaswamy judgment?

04 The Court's (multiple) views

on privacy

05 Tests for infringement of

privacy

06 Conclusion

6
Introduction

On 24th August 2017, a nine-judge bench of the Supreme Court in Justice K.S. Puttaswamy vs
Union of India passed a historic judgment affirming the constitutional right to privacy. It
declared privacy to be an integral component of Part III of the Constitution of India, which lays
down our fundamental rights, ranging from rights relating to equality (Articles 14 to 18);
freedom of speech and expression (Article 19(1)(a)); freedom of movement (Article 19(1)(d));
protection of life and personal liberty (Article 21) and others. These fundamental rights cannot
be given or taken away by law, and all laws and executive actions must abide by them.1

The Supreme Court has, however, clarified that like most other fundamental rights, the right to
privacy is not an "absolute right". Subject to the satisfaction of certain tests and benchmarks, a
person's privacy interests can be overridden by competing state and individual interests. This
post discusses the tests that have been laid down by the Supreme Court in the Puttaswamy case,
against which privacy infringements will be evaluated going forward. Based on this analysis, the
post argues that a majority of the judges in this decision have agreed that the European standard
of proportionality shall be applied to test privacy infringements in the future. However, the rigor
and technicality with which this doctrine is applied will depend on the nature of the competing
interests in question and will evolve on a case by case basis. 2 At the very least, any impugned
action will continue to be tested on the "just, fair and reasonable" standard evolved under Article
21 of the Constitution. However, before we delve into the standards laid down by the Court, it is
important to understand why the Supreme Court was called upon to decide if we have a
fundamental right to privacy and how to read the decision it finally delivered.

Why was a nine-judge bench constituted to decide upon the right to privacy?

1/5 The question of whether or not privacy is a fundamental right first arose in 2015 before a
three-judge bench of the Supreme Court considering the constitutional challenge to the Aadhaar
framework.3 The Attorney General had then argued that although a number of Supreme Court

1
An account of privacy, justifying right to privacy (oct 15 2019), http://arno.uvt.nl/show.cgi?fid=141811

2
Introduction, state of privacy India (oct 15 2019), https://privacyinternational.org/state-privacy/1002/state-
privacy-india
3
Pritam Baruah, Why was a nine-judge bench constituted to decide upon the right to privacy? , Justifying Privacy:
The Indian Supreme Court’s Comparative Analysis (oct 15 2019),

7
decisions had recognised the right to privacy, Part III of the Constitution does not guarantee such
a fundamental right since larger benches of the Court in M.P Sharma (8 judge bench) and Kharak
Singh (6 judge bench), had refused to accept that the right to privacy was constitutionally
protected. Consequently, this bench referred the matter to a five-judge bench to ensure
"institutional integrity and judicial discipline". Thereafter, the five-judge bench referred the
constitutional question to an even larger bench of nine judges to pronounce authoritatively on the
status of the right to privacy.4

How do we read the Puttaswamy judgment?

The judgment, spanning 547 pages, contains six opinions and a lot of interesting observations. At
the outset, however, it is important to note that only the majority opinion in a judgment is
binding on future cases. In this case, Chandrachud J. wrote the plurality opinion, on behalf of
four judges (Kehar C.J., Agrawal J., Nazeer J., and himself), while the remaining five judges
(Nariman J., Kaul J., Bobde J., Sapre J., and Chelameswar J.) wrote concurring opinions. 5 Thus,
while Justice Chandrachud's opinion is the "plurality" opinion, it does not constitute the majority,
since it has not been signed by a total of five or more judges. Similarly, the concurring opinions
too, are not binding and do not constitute 'precedent' for future cases. Thus, the operative part of
the judgment, i.e. the binding part, is only the order that has been signed by all nine judges,
which holds:

The eight-judge bench decision in M P Sharma (1954), which held that the right to privacy is not
protected by the Constitution stands over-ruled;

The Court's subsequent decision in Kharak Singh (1962) also stands over-ruled to the extent that
it holds that the right to privacy is not protected under the Constitution;

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; and

https://www.researchgate.net/publication/334366541_Justifying_Privacy_The_Indian_Supreme_Court's_Compara
tive_Analysis

4
Ibid
5
Qwerty9729 , legal analysis of right to privacy in India (oct 15 2019),
http://www.legalserviceindia.com/legal/article-676-legal-analysis-of-right-to-privacy-in-india.html

8
The body of case law that developed subsequent to Kharak Singh, recognizing the right to
privacy, enunciated the correct position of law.

It is a well-settled legal principle that a case is only an authority for what it actually decides , not
any observations made in the course of the judgment or any propositions that may logically
follow from it. Hence, to determine what aspects of the judgment are binding, it is important to
examine each opinion and see the point of agreement amongst a majority of the nine judges. So,
if any judge agrees with a view taken by Chandrachud J. on any proposition, that would result in
a majority of five out of nine, and hence, be binding on smaller benches and other courts. For
instance, since a majority of the judges agree that privacy is an inalienable, natural right, that
forms part of the binding element of the case. 6

With this in mind, let us now examine each of the opinions in Puttaswamy to see what they hold,
how they construe the right to privacy, and what standard of judicial review they apply.

The Court's (multiple) views on privacy

Writing the plurality opinion, Chandrachud J., holds that the right to privacy is not independent
of the other freedoms guaranteed by Part III of the Constitution. It is an element of human
dignity and is an inalienable natural right. He focuses on the informational aspect of privacy, its
connection with human dignity and autonomy, 2/5 and rejects the argument that privacy is an
elitist construct. During the course of his opinion, Chandrachud J. makes several observations
about privacy in the digital economy, dangers of data mining, positive obligations on the State,
and the need for a data protection law.7 He also raises an important point about the negative and
positive elements of privacy. The former restricts the State from unfairly interfering in the
privacy of individuals, while the latter obliges it to put in place a legislative framework to restrict
others from doing so.8

Chelameswar J. on the other hand, grounds the right to privacy, as comprising of three facets,
namely repose (freedom from unwarranted stimuli), sanctuary (protection from intrusive
6
Supra note 5
7
Shristi dubey, court’s privacy (oct 15 2019),
https://www.academia.edu/36918413/Justifying_Privacy_The_Indian_Supreme_Courts_Comparative_Analysis
8
Gautam Bhatia, STATE SURVEILLANCE AND THE RIGHT TO PRIVACY IN INDIA: A CONSTITUTIONAL BIOGRAPHY (oct
15 2019), https://www.jstor.org/stable/44283638?seq=1#page_scan_tab_contents

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observation) and intimate decision (autonomy to make personal life decisions). Nariman J. too
endorses Gary Bostwick's conceptual understanding of privacy as encompassing "repose,
sanctuary, and intimate decision". He gives further content to the right by classifying it into three
categories: (1) that which involves invasion by the State into a person's physical body, (2)
information privacy which captures unauthorised uses of personal information, and (3) privacy
of choice, or "individual autonomy over fundamental personal choices". 9

For Bobde J., fundamental rights have two aspects - first, to restrict legislative powers and
second, to provide the conditions for the development and dignity of individuals. Thus, similar to
Chandrachud J., he recognizes both the positive and negative aspects of enforcing fundamental
rights, although he is clear that fundamental rights claims (as opposed to other laws) fall squarely
on the State.10

Kaul J., on the other hand, recognizes the claims of privacy against the State and non-State
actors. In respect of the State, he identifies concerns of surveillance and profiling, whereas, in
respect of non-State actors, he emphasizes on the impact of technology, in the form of pervasive
data generation, collection, and use in a digital economy. Kaul J. also elaborates on the influence
of big data, in particular, its impact on the actions of an individual and the resultant chilling
effect it may have on free speech and expression. He thus observes the need to protect certain
information from both the State as well as private actors.11 Finally, Sapre J. focuses his opinion
on the importance of the Preamble to the Constitution, and the principles of liberty, dignity, and
fraternity enshrined therein.

Given the Court's varying conceptions of privacy, it is easy to understand why the suggested
standards for evaluating an infringement of the right also varied so widely. We turn to this in the
next section.

Tests for infringement of privacy

9
Bhupendra soni, court’s view on right to privacy, right to privacy (oct 26 2019),
https://link.springer.com/chapter/10.1007/978-981-13-7052-6_8
10
Constitutional Jurisprudence on Privacy, Limits to Privacy (oct 15 2019), https://cis-india.org/internet-
governance/blog/privacy/limits-to-privacy

11
Ibid

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After a bumpy start in the MP Singh and Kharak Singh cases referred to above, the Supreme
Court's jurisprudence on privacy evolved to accept that privacy forms an integral part of
"personal liberty" under Article 21 of the Constitution, which cannot be denied except through a
"procedure established by law". The Supreme Court has clarified this to mean that the procedure
prescribed by law must necessarily be "just, fair and reasonable". 12 How this, and other standards
of judicial review, will apply in the case of intrusion by the State into the right privacy, was the
subject matter of much discussion in the various opinions in Puttaswamy. This section discusses
some of the key observations.

The judgment written by Chelameswar J. provides a good overview by highlighting that the
requirement of reasonableness pervades throughout Part III, albeit operating slightly differently
for different fundamental rights. Accordingly, he suggests a "menu" of tests that can be used in
privacy cases, depending on the underlying rights that are affected.13 Thus, a violation of privacy
in the context of an arbitrary State action would attract a "reasonableness" enquiry under Article
14; similarly, privacy invasions that implicate Article 19 freedoms would have to fall under the
specified restrictions under this constitutional provision like public order, obscenity etc; and
finally, intrusion into life or personal liberty under Article 21, which forms the "bedrock of the
privacy guarantee", would have to be just, fair and reasonable. For instance, over-broad
telephone-tapping regulations would implicate both a citizen's freedom of speech (Article
19(1)(a)) as well as her personal liberty (Article 21).14 Under the Court's analysis, such a law
would have to be justifiable under one of the specific restrictions in Article 19(2),3/5 in addition
to being "fair, just and reasonable" as required by Article 21, as was held in the PUCL case.

Notably, Justice Chelameswar also includes a fourth test for privacy claims which deserve the
"highest standard of scrutiny" and can be justified only in case of a "compelling state interest".
Borrowing the strict scrutiny standard, typically reserved for discrimination cases in the U.S., he
notes that there exists a category of privacy claims which must satisfy not just the tests of being

12
Supra note 10
13
Trilegal, (a) Right to Privacy - A Fundamental Right, India: Supreme Court Declares Right To Privacy A
Fundamental Right (oct 15 2019),
http://www.mondaq.com/india/x/625192/Data+Protection+Privacy/Supreme+Court+Declares+Right+To+Privacy+
A+Fundamental+Right

14
Ibid

11
"just, fair and reasonable" under Article 21, but also a higher level of importance in terms of the
government's interest in the privacy intrusion. While laying down this higher standard of
scrutiny, Chelameswar J., however, stops short of illustrating what sort of actions could fall
under this category, and what would be the trigger for the application of this test. These issues
have been left open for future Courts to deal with. Nariman J. adds to this analysis by giving
several examples to emphasize that the restrictions on privacy will need to be tested based on the
combination of rights being infringed.15 For example, if the violation is of Article 21 read with
Article 14 (right to equality), then tests of arbitrariness and unreasonableness will apply; or under
Article 21 read with Article 19(1) (a) (freedom of speech), then the impugned law/policy will
have to relate to the reasonable restrictions specified in Article 19(2), as described in the
wiretapping example above.16 Thus, Nariman J., rather than elucidating a test, only clarifies that
the analysis will be case by case - based on existing jurisprudence under the relevant
fundamental right that is invoked. In a similar vein, Bobde J. states that privacy infringements
will have to answer the tests under those particular freedoms "in addition to the one applicable to
Article 21".

Borrowing vaguely from the restrictions on the right to privacy as specified under the European
Convention on Human Rights (Article 8), Sapre J. brings in a slightly different perspective. He
notes that the State can impose reasonable restrictions on the right to privacy "on the basis of
social, moral and compelling public interest in accordance with law".17 If Sapre J. is indeed
articulating a new test, it is unclear where its textual basis lies in the Indian Constitution, given
that many fundamental rights, such as the freedom of speech and expression, do not recognize
public interest as a valid restriction. Moreover, such an articulation lacks clarity on what
standards will apply to judge the "social, moral, and compelling public interest" or how this
would interact with Chelameshwar J's "compelling state interest" test. 18 It may thus be better

15
Hinailiyas, International Concepts of Privacy, Right To Privacy Under Article 21 and the Related Conflicts (oct
15 2019), http://www.legalservicesindia.com/article/1630/Right-To-Privacy-Under-Article-21-and-the-Related-
Conflicts.html
16
Ibid
17
MD SAHABUDDIN MONDAL, The right to respect for private and family life, Right to Privacy is a Fundamental
Right - A Study (oct 15 2019), http://www.legalservicesindia.com/article/2260/Right-to-Privacy-is-a-
Fundamental-Right---A-Study.html
18
Supra note 05

12
understood as a general articulation of the Article 19 standard for reasonable restrictions, which
will apply differently based on the specific right that has been infringed.

Interestingly, two of the judgments (representing the views of five judges) provide more teeth in
terms of how existing tests under Article 21 should be interpreted.19 Drawing from the concept of
proportionality that is used to balance rights and competing interests under European law,
Chandrachud J., notes that any invasion of life or personal liberty must meet the three
requirements of (a) legality, i.e. there must be a law in existence; (b) legitimate aim, which he
illustrates as including goals like national security, proper deployment of national resources, and
protection of revenue; and (c) proportionality of the legitimate aims with the object sought to be
achieved.20 Although Chandrachud J. has used the term "proportionality", he stops short of
actually adopting the very technical European proportionality standard, with its focus on narrow
tailoring and least restrictive means.

Kaul J.'s "proportionality" test differs slightly from Chandrachud J. It requires (a) legality, (b)
necessity (narrow tailoring) and (c) proportionality, which is closer to the European standard.21
He adds to this the fourth element of (d) procedural safeguards against abuse of interference with
rights, which echoes Article 21's central requirement of having a "procedure established by law".

How then do we read the majority opinion on the judicial review standard adopted in
Puttaswamy? One way of reading the judgment could be through the proportionality standard
espoused by Chandrachud J. and elaborated by Kaul J. According to this, the four elements of
the judicial review standard are as follows, although it is relevant to note that the additional
observations made by Kaul J. do not constitute part of the "majority view":

Legality: The existence of a law. 4/5

Legitimate Goal: The law should seek to achieve a legitimate state aim (Chandrachud J.). The
proposed action must be necessary for a democratic society for a legitimate aim (Kaul J.). Justice
Kaul's opinion can be read to espouse the EU narrow tailoring test.
19
Nishith Desai, India: Supreme Court Holds That The Right To Privacy Is A Fundamental Right Guaranteed Under
The Constitution Of India (oct 15 2019),
http://www.mondaq.com/india/x/629084/Data+Protection+Privacy/Supreme+Court+holds+that+the+right+to+
privacy+is+a+fundamental+right+guaranteed+under+the+Constitution+of+India
20
Ibid
21
Priyanka Mittal, Right to privacy is fundamental: Supreme Court (oct 15 2019), https://www.livemint.com/

13
Proportionality: There should be a rational nexus between the objects and the means adopted to
achieve them (Chandrachud J.). The extent of interference must be proportionate to its need
(Kaul J.).

Procedural Guarantees: To check against the abuse of State interference (Kaul J.) There was
unanimity amongst the nine judges that privacy is not an absolute right, although the basis for
assessing violations is less clear.22 While the content and applicability of the aforesaid
proportionality test will be determined by subsequent decisions, what is certain is that privacy
claims will be tested against the existing standards applicable under the Constitution or
developed by Courts for different categories of fundamental rights. 23 At the very least, the
impugned action should satisfy the test of "just, fair and reasonable" procedure under Article 21
of the Constitution.

22
Tas Bindi, Right to privacy fundamental but not absolute: Supreme Court of India (oct 15 2019),
https://www.zdnet.com/article/right-to-privacy-fundamental-but-not-absolute-supreme-court-of-india/
23
Gautam Bhatia, STATE SURVEILLANCE AND THE RIGHT TO PRIVACY IN INDIA: A CONSTITUTIONAL BIOGRAPHY
(oct 15 2019), https://www.jstor.org/stable/44283638?seq=1#page_scan_tab_contents

14
Conclusion

The Court's broad interpretation of the right to privacy has paved the way for a wide range of
claims. While the exact boundaries of the right will continue to develop on a case by case basis,
it is clear that privacy claims will often have to be weighed against other competing interests. In
the absence of a defined hierarchy among the various rights guaranteed under Part III of the
Constitution, the decision in each case will vary based on facts at hand and the judicial
interpretation. For instance, can the dignity of a married woman, which is central to her privacy
and liberty, be infringed by a law on marital rape so as to shield the "private affairs" of the
family? Does the efficiency of having a meta-database of information on all citizens trump the
autonomy of those who resist its adoption? Can an individual's "right to be forgotten" on the
Internet override the open information needs of many others? In fact, just last week, a PIL was
filed before the Delhi High Court that the restitution of conjugal rights provision in the Hindu
Marriage Act and Special Marriage Act is violative of the right to privacy. The real test of
privacy will lie in how subsequent Courts apply the Puttaswamy decision to determine these
varied questions.

15