Privacy, Surveillance and Data

In one line

Nine judges held unanimously that privacy is a fundamental right, and the interesting part is that they located it in the whole of Part III rather than in article 21 alone.

In the wording a student can write in an exam: the Constitution contains no express right to privacy, and in M P Sharma, decided by eight judges, and in Kharak Singh, decided by six, it had been held that no such right is protected. In Justice K.S. Puttaswamy (Retd) v. Union of India a Bench of nine judges unanimously overruled M P Sharma, overruled Kharak Singh to the extent it held that the right to privacy is not protected, and declared that 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. Restrictions on the right must satisfy the requirements of legality, a legitimate State aim and proportionality.

The decision

Facts. Justice K.S. Puttaswamy (Retd) v. Union of India, decided 24 August 2017 by nine judges. A reference arising out of challenges to the Aadhaar scheme, in which the Union contended that there is no fundamental right to privacy at all, relying on two older and larger Benches.

Held. Unanimously, in four terms:

(i) M P Sharma, which holds that the right to privacy is not protected by the Constitution, stands overruled.

(ii) Kharak Singh, to the extent that it holds that the right to privacy is not protected by the Constitution, stands overruled.

(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 enunciated that position lay down the correct law.

Six separate judgments were delivered; the judgment for the Chief Justice, Agrawal and Nazeer JJ. and himself was delivered by Chandrachud J.

Why the wording of (iii) matters more than students notice. Privacy is not confined to article 21. It is protected as a part of the freedoms guaranteed by Part III, which means it inheres in article 19 as well. That is what allows privacy reasoning to be used about speech, association and movement, and it is why this case belongs in a chapter on the press rather than only in a chapter on life and liberty.

The tests for a restriction

Because privacy is a Part III right, it may be restricted, and the standard formulation has three requirements, with a fourth commonly added.

Legality. There must be a law. Executive action without statutory backing cannot invade privacy, which is the same first requirement as under article 19(2) and the one most often decisive.