Right to Privacy: The Puttaswamy Effect

By Sangh Rakshita and Nidhi Singh

The Puttaswamy judgement of 2017 reaffirmed the ‘Right to Privacy’ as a fundamental right in Indian Jurisprudence. Since then, it has been used as an important precedent in many cases, to emphasize upon the right to privacy as a fundamental right and to clarify the scope of the same. In this blog, we discuss some of the cases of the Supreme Court and various High Courts, post August 2017, which have used the Puttaswamy judgement and the tests laid in it to further the jurisprudence on right to privacy in India. With the Personal Data Protection Bill tabled in 2019, the debate on privacy has been re-ignited, and as such, it is important to explore the contours of the right to privacy as a fundamental right, post the Puttaswamy judgement.   

Navtej Singh Johar and ors Vs. Union of India (UOI) and Ors., 2018 (Supreme Court)

In this case, the Supreme Court of India unanimously held that Section 377 of the Indian Penal Code 1860 (IPC), which criminalized ‘carnal intercourse against the order of nature’, was unconstitutional in so far as it criminalized consensual sexual conduct between adults of the same sex. The petition, challenged Section 377 on the ground that it was vague and it violated the constitutional rights to privacy, freedom of expression, equality, human dignity and protection from discrimination guaranteed under Articles 14, 15, 19 and 21 of the Constitution. The Court relied upon the judgement in the case of K.S. Puttaswamy v. Union of India, which held that denying the LGBT community its right to privacy on the ground that they form a minority of the population would be violative of their fundamental rights, and that sexual orientation forms an inherent part of self-identity and denying the same would be violative of the right to life.

Justice K.S. Puttaswamy and Ors. vs. Union of India (UOI) and Ors., 2018 (Supreme Court)

 The Supreme Court upheld the validity of the Aadhar Scheme on the ground that it did not violate the right to privacy of the citizens as minimal biometric data was collected in the enrolment process and the authentication process is not exposed to the internet. The majority upheld the constitutionality of the Aadhaar Act, 2016 barring a few provisions on disclosure of personal information, cognizance of offences and use of the Aadhaar ecosystem by private corporations. They relied on the fulfilment of the proportionality test as laid down in the Puttaswamy (2017) judgment.

Joseph Shine vs. Union of India (UOI), 2018 (Supreme Court)

The Supreme Court decriminalised adultery in this case where the constitutional validity of Section 497 (adultery) of IPC and Section 198(2) of Code of Criminal Procedure, 1973 (CrPC) was challenged. The Court held that in criminalizing adultery, the legislature has imposed its imprimatur on the control by a man over the sexuality of his spouse – in doing that, the statutory provision fails to meet the touchstone of Article 21. Section 497 was struck down on the ground that it deprives a woman of her autonomy, dignity and privacy and that it compounds the encroachment on her right to life and personal liberty by adopting a notion of marriage which subverts true equality. Concurring judgments in this case referred to Puttaswamy to explain the concepts of autonomy and dignity, and their intricate relationship with the protection of life and liberty as guaranteed in the Constitution. They relied on the Puttaswamy judgment to emphasize the dangers of the “use of privacy as a veneer for patriarchal domination and abuse of women.” They also cited Puttaswamy to elucidate that privacy is the entitlement of every individual, with no distinction to be made on the basis of the individual’s position in society.

Indian Young Lawyers Association and Ors. vs. The State of Kerala and Ors., 2018 (Supreme Court)

In this case, the Supreme Court upheld the right of women aged between 10 to 50 years to enter the Sabrimala Temple. The court held Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965, which restricts the entry of women into the Sabarimala temple, to be ultra vires (i.e. not permitted under the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965). While discussing the guarantee against social exclusion based on notions of “purity and pollution” as an acknowledgment of the inalienable dignity of every individual J. Chandrachud (in his concurring judgment) referred to Puttaswamy specifically to explain dignity as a facet of Article 21. In the course of submissions, the Amicus to the case had submitted that the exclusionary practice in its implementation results in involuntary disclosure by women of both their menstrual status and age which amounts to forced disclosure that consequently violates the right to dignity and privacy embedded in Article 21 of the Constitution of India.

(The judgement is under review before a 9 judge constitutional bench.)

Vinit Kumar Vs. Central Bureau of Investigation and Ors., 2019 (Bombay High Court)

This case dealt with phone tapping and surveillance under section 5(2) of the Indian Telegraph Act, 1885 (Telegraph Act) and the balance between public safety interests and the right to privacy. Section 5(2) of the Telegraph Act permits the interception of telephone communications in the case of a public emergency, or where there is a public safety requirement. Such interception needs to comply with the procedural safeguards set out by the Supreme Court in PUCL v. Union of India (1997), which were then codified as rules under the Telegraph Act. The Bombay High Court applied the tests of legitimacy and proportionality laid down in Puttaswamy, to the interception orders issued under the Telegraph Act, and held that in this case the order for interception could not be substantiated in the interest of public safety and did not satisfy the test of “principles of proportionality and legitimacy” as laid down in Puttaswamy. The Bombay High Court quashed the interception orders in question, and directed that the copies / recordings of the intercepted communications be destroyed.

Central Public Information Officer, Supreme Court of India vs. Subhash Chandra Agarwal, 2019 (Supreme Court)

In this case, the Supreme Court held that held that the Office of the Chief Justice of India is a ‘public authority’ under the Right to Information Act, 2005 (RTI Act) – enabling the disclosure of information such as the Judges personal assets. In this case, the Court discussed the privacy impact of such disclosure extensively, including in the context of Puttaswamy. The Court found that the right to information and right to privacy are at an equal footing, and that there was no requirement to take a view that one right trumps the other. The Court stated that the proportionality test laid down in Puttaswamy should be used by the Information Officer to balance the two rights, and also found that the RTI Act itself has sufficient procedural safeguards built in, to meet this test in the case of disclosure of personal information.

X vs. State of Uttarakhand and Ors., 2019 (Uttarakhand High Court)

In this case the petitioner claimed that she had identified herself as female, and undergone gender reassignment surgery and therefore should be treated as a female. She was not recognized as female by the State. While the Court primarily relied upon the judgment of the Supreme Court in NALSA v. Union of India, it also referred to the judgment in Puttaswamy. Specifically, the judgment refers to the finding in Puttaswamy that the right to privacy is not necessarily limited to any one provision in the chapter on fundamental rights, but rather intersecting rights. The intersection of Article 15 with Article 21 locates a constitutional right to privacy as an expression of individual autonomy, dignity and identity. The Court also referred to the Supreme Court’s judgment in Navtej Singh Johar v. Union of India, and on the basis of all three judgments, upheld the right of the petitioner to be recognized as a female.

(This judgment may need to be re-examined in light of the The Transgender Persons (Protection of Rights) Bill, 2019.)

Indian Hotel and Restaurant Association (AHAR) and Ors. vs. The State of Maharashtra and Ors., 2019 (Supreme Court)

This case dealt with the validity of the Maharashtra Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein) Act, 2016. The Supreme Court held that the applications for grant of licence should be considered more objectively and with open mind so that there is no complete ban on staging dance performances at designated places prescribed in the Act. Several of the conditions under the Act were challenged, including one that required the installation of CCTV cameras in the rooms where dances were to be performed. Here, the Court relied on Puttaswamy (and the discussion on unpopular privacy laws) to set aside the condition requiring such installation of CCTV cameras.

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