Privacy
Chapter Seventy-Five
Syllabus topic 6, "Emerging regime of new rights and remedies"
Pages 345 to 349 of 711
In one line
The Constitution never mentions privacy, and for sixty-seven years the State was able to say so; in 2017 nine judges held unanimously that privacy is protected anyway, as part of the right to life and of the freedoms in Part III, and laid down three tests any law invading it must pass.
In the wording a student can write in an exam: in Justice K.S. Puttaswamy (Retd) v. Union of India a Bench of nine judges held 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, overruling M.P. Sharma and overruling Kharak Singh to the extent that it held privacy is not so protected. A law invading privacy must satisfy a three-fold requirement: legality, that is, the existence of a law; need, in terms of a legitimate State aim; and proportionality, that the means adopted are proportional to the object sought to be achieved.
Why the case had to be decided by nine judges
The reason is procedural, and it is worth stating because MU's examiners like it.
Two old decisions stood in the way. M.P. Sharma was decided by eight judges in 1954 and Kharak Singh by six in 1962, and both contained observations that the Constitution contains no right to privacy. Later benches, of two and three judges, had repeatedly held that privacy was protected. That is an untidy state of the law: smaller benches cannot overrule larger ones, so the later cases were of doubtful authority however numerous.
When the Aadhaar scheme was challenged, the Union took the point squarely: there is no fundamental right to privacy, and M.P. Sharma and Kharak Singh say so. The only way to settle it was a Bench larger than eight. Hence nine.
That is why the answer to "how many judges decided Puttaswamy" is not trivia. The number was determined by the size of the benches that had to be overruled.
What the two old cases actually decided
Neither was a privacy case in the modern sense, and saying so is what separates a good answer from a recital.
Facts. M.P. Sharma v. Satish Chandra, District Magistrate, Delhi, District Magistrate, Delhi, 1954 AIR 300, 1954 SCR 1077, decided 15 March 1954. Search warrants were issued under section 96(1) of the Code of Criminal Procedure 1898 and documents were searched for and seized. The challenge was that this offended article 19(1)(f), the then right to property, and article 20(3), the protection against self-incrimination.
Held. The provision for a search warrant does not offend article 19(1)(f). A search and seizure is only a temporary interference with the right to hold the property searched and the articles seized; statutory recognition of it is a necessary and reasonable restriction. It was in the course of this reasoning, and not as the point decided, that the Court observed that the Constitution contains no provision analogous to the American Fourth Amendment and so no right to privacy.
Privacy
Why it matters. The observation was an aside in a case about search warrants and self-incrimination. Puttaswamy overruled it, and the reason it needed nine judges to do so is that the aside was made by eight.
For Kharak Singh, see [The Expansion of "Life"]: four of the five kinds of surveillance were upheld, the test applied was whether the infringement was "direct as well as tangible", and the majority declined to protect what it called "mere personal sensitiveness". Subba Rao J. dissented, and it is his view that prevailed.
The nine-judge answer
Facts. Justice K.S. Puttaswamy (Retd) v. Union of India, decided 24 August 2017. A reference to nine judges arising out of the challenges to the Aadhaar scheme, in which the Union contended that there is no fundamental right to privacy, relying on M.P. Sharma, decided by eight judges, and Kharak Singh, decided by six.
Held. Unanimously, in an order 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.
Why it matters. Read term (iii) closely, because most answers misstate it. Privacy is not located in article 21 alone. It is protected as part of the freedoms guaranteed by Part III, which means it informs articles 14 and 19 as well. That is why privacy reaches speech, surveillance, association and data, and not only bodily and decisional autonomy, and it is why a privacy claim can be framed as an equality claim or a speech claim where those fit better.
The three-fold requirement
This is the operative part for any problem question, and the Court is explicit that it applies "to all restraints on privacy (not just informational privacy)". The three requirements "emanate from the procedural and content-based mandate of Article 21".
One: legality. "There must be a law in existence to justify an encroachment on privacy", which the Court calls "an express requirement of Article 21", since no person may be deprived of life or personal liberty except in accordance with procedure established by law. The existence of law is an essential requirement. An executive circular, a departmental instruction or an administrative practice is not a law, and a measure resting on one fails at this step without the court reaching the merits.
Privacy
Two: need, in terms of a legitimate State aim. This ensures that the law "falls within the zone of reasonableness mandated by Article 14, which is a guarantee against arbitrary state action", and that the law "does not suffer from manifest arbitrariness". The Court is careful about the limits of its own role here: "Judicial review does not re-appreciate or second guess the value judgment of the legislature but is for deciding whether the aim which is sought to be pursued suffers from palpable or manifest arbitrariness."
Three: proportionality. This "ensures that the means which are adopted by the legislature are proportional to the object and needs sought to be fulfilled by the law". Proportionality "is an essential facet of the guarantee against arbitrary state action because it ensures that the nature and quality of the encroachment on the right is not disproportionate to the purpose of the law".
Notice where each test comes from: legality from article 21, need from article 14, proportionality from the interdependence of the two. The Court says so in terms, that the three-fold requirement "arises out of the mutual inter-dependence between the fundamental guarantees against arbitrariness on the one hand and the protection of life and personal liberty, on the other". This is the golden triangle of [Article 21: From Gopalan to Maneka] doing concrete work.
Distinguishing the three tests
| Test | Question it asks | Source | Typical failure |
|---|---|---|---|
| Legality | Is there a law at all? | Article 21, "procedure established by law" | A circular, a policy, an executive order |
| Need | Is the aim a legitimate State aim, or manifestly arbitrary? | Article 14 | An aim that is a pretext, or none stated |
| Proportionality | Do the means fit the aim, or go further than it needs? | Both, read together | Collecting far more than the purpose requires |
The most common mistake in an answer is to run the second and third together. The aim can be perfectly legitimate and the law still fail, because the means are excessive. Proportionality is where most modern privacy litigation is actually decided.
What it does NOT mean
It does not mean privacy is absolute. The Court said in terms that the right, being an intrinsic part of life and liberty and of the Part III freedoms, "is subject to the same restraints which apply to those freedoms".
Privacy
It does not mean the State may not collect data. Puttaswamy accepts that "apart from national security, the state may have justifiable reasons for the collection and storage of data", and that in a social welfare state there is "a vital state interest in ensuring that scarce public resources" reach those entitled to them. The judgment is not hostile to Aadhaar in principle; it settles the framework in which such a scheme is judged.
It does not mean Kharak Singh was overruled entirely. Term (ii) is expressly limited: overruled "to the extent that it holds that the right to privacy is not protected". The rest of it stands.
It does not mean privacy sits only in article 21. See term (iii). Writing that Puttaswamy located privacy in article 21 alone is the single most common error on this topic.
A worked example
A State government directs, by an executive order, that all users of public wi-fi must authenticate with a biometric linked to a government database, and that the logs of sites visited be retained for five years and shared with the police on request. Anil challenges it.
Step one, is privacy engaged? Yes, on term (iii) of Puttaswamy, and on both branches: informational privacy in the logs, and bodily privacy in the biometric.
Step two, legality. An executive order is not a law. On the first requirement the measure fails here, and a court need go no further. Always take this point first; it is the cheapest to win and the one candidates skip.
Step three, assume instead a statute. Now ask the second question. Is preventing crime on public networks a legitimate State aim? Plainly yes, and a court will not second-guess that value judgment; it asks only whether the aim is palpably or manifestly arbitrary.
Step four, proportionality. This is where the measure is likely to fail. Five years of full browsing logs for every user of public wi-fi, retained irrespective of suspicion and available on request without judicial authorisation, is an encroachment whose nature and quality is disproportionate to the purpose. Ask what a less intrusive measure would achieve: targeted retention on suspicion, shorter periods, authorisation by a judicial officer.
Step five, frame it more than one way. Because privacy is part of the Part III freedoms and not article 21 alone, the retention of browsing logs also chills article 19(1)(a), and biometric authentication applied to some classes of user and not others raises article 14. On [Privacy, Surveillance and Data] a chilling effect is itself a restriction.
Step six, the conclusion. The measure fails at legality outright; if enacted as a statute it would very likely fail on proportionality, and the argument is put on articles 21, 19 and 14 together.
Privacy
Quick revision
- Nine judges, 24 August 2017, unanimous, six separate judgments. Nine because M.P. Sharma was eight and Kharak Singh six.
- M.P. Sharma (1954, eight judges): search warrants under section 96(1) CrPC do not offend article 19(1)(f); the remark about privacy was an aside. Overruled.
- Kharak Singh (1962, six judges): overruled only to the extent that it held privacy unprotected.
- Term (iii): privacy is protected as an intrinsic part of article 21 AND as part of the freedoms guaranteed by Part III. Not article 21 alone.
- The three-fold requirement, applying to all restraints on privacy: legality, need in terms of a legitimate State aim, and proportionality.
- Legality comes from article 21, need from article 14, proportionality from the two read together.
- Judicial review of the aim asks only whether it suffers from palpable or manifest arbitrariness; it does not second-guess the legislature's value judgment.
- Privacy is not absolute and is subject to the same restraints as the other Part III freedoms.
Test yourself
1. Why was Puttaswamy heard by nine judges? Answer with reference to the two decisions it overruled.
2. State term (iii) of the order exactly. What is the significance of the words "and as a part of the freedoms guaranteed by Part III"?
3. Set out the three-fold requirement, and say which article each test is drawn from.
4. What did M.P. Sharma actually decide? Why is it inaccurate to describe it as a privacy case?
5. A measure rests on an executive circular. At which stage does the challenge succeed, and why should you take that point first?
6. Distinguish the second and third tests with an example where the aim is legitimate but the law still fails.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.