K.S.

Puttaswamy vs Union of India (2015)

CASE COMMENT AND

ANALYSIS

Delhi
 LIST OF CASES

R. Rajagopal vs State of Tamil Nadu (1994

Haelan Laboratories Inc. v. Topps Chewing Gum Inc., 202 F 2d 866 (2d Cir
1953)
MP Sharma v. Satish Chandra (1954)
Kharak Singh v. State of Uttar Pradesh (1962)
S and Marper v. United Kingdom
D.S. Nakara vs Union of India(1983)
D.S. Nakara vs Union of India (1983)

CONTENTS
Facts of the case
Issues of the case
Issue no 1
Issue no 2
Ratio- Decidendi
Case Comment and Analysis
Refrences
 Petitioner: Justice K.S. Puttaswamy (Retd.) and others
Respondent: Union of India
 Citation: (2017) 10 SCC 1
 Date of Judgment: August 24, 2017

 Bench: 9 Judges

Background Events
1. 1994: MP Sharma & Kharak Singh Cases
o The Supreme Court in MP Sharma (1954) and Kharak Singh (1962) ruled
that the right to privacy is not protected as a fundamental right under the
Constitution.
2. 2009: AADHAAR Scheme Launched
o The Government of India introduced the Aadhaar project under the Unique
Identification Authority of India (UIDAI) based on biometric and
demographic data. Concerns about privacy started rising regarding how the
data would be used.
3. 2012: Petition Filed by Justice K.S. Puttaswamy
o Justice K.S. Puttaswamy, a retired judge, and Mr. Pravesh Khanna filed a
writ petition in the Supreme Court challenging the constitutionality of the
Aadhaar project, arguing that collecting personal data violated the right to
privacy.
4. 2015: Reference to Constitution Bench
o In 2015, a three-judge bench of the Supreme Court hearing the Aadhaar case
referred the issue to a larger constitutional bench to determine whether the
right to privacy is a fundamental right.
5. 2017: Formation of the 9-Judge Bench
o The case was heard by a 9-judge bench of the Supreme Court. This bench was
tasked with addressing the larger constitutional question: Does the right to
privacy exist as a fundamental right in India?
This judgment talks about taking the Right to privacy as a fundamental right in the
Constitution of India and henceforth finding out if the Aadhar Scheme violates this right or
not. Whether the scheme is unconstitutional or not.

ARGUMENTS OF BOTH PARTIES

 The challenge to Aadhaar's Constitutionality: Justice K.S. Puttaswamy, a retired
judge of the Karnataka High Court, filed a Public Interest Litigation (PIL) before the
Supreme Court in 2012. He challenged the constitutionality of the Aadhaar scheme, arguing
that it violated citizens’ right to privacy. The petition contended that the collection of
biometric and demographic data for Aadhaar created the potential for surveillance and
misuse by the state.
To put it in a nutshell, provisions of the Aadhaar Act are perceived by the petitioners as
giving away vital information about the residents to the State not only in the form of
biometrics but also about the movement as well as varied kinds of transactions which a
resident would enter into from time to times. As per the petitioners, this is an inroad into the
rights and liberties of the citizens which the Constitution of India guarantees. It is intrusive in
nature
At its core, Aadhaar alters the relationship between the citizen and the State. It diminishes the
status of the citizens. Rights freely exercised, liberties freely enjoyed, entitlements granted by
the Constitution, and laws are all made conditional, on a compulsory barter.
According to them, by the very scheme of the Act and the way it operates, it has the
propensity to cause ‘civil death’ of an individual by simply switching of Aadhaar of that
person. The project creates the architecture for pervasive surveillance and unless the project
is stopped, it will lead to an Orwellian State where every move of the citizen is constantly
tracked and recorded by the State.

 Right to Privacy Not Explicitly Recognized: At the time, Indian constitutional law did
not clearly recognize privacy as a fundamental right. Earlier cases like M.P. Sharma vs
Satish Chandra (1954) and Kharak Singh vs State of Uttar Pradesh (1962) had ruled that
privacy was not a fundamental right under the Constitution of India.
ISSUE NO 1
WHETHER THE RIGHT OF PRIVACY SHOULD BE RECOGNISED AS A
FUNDAMENTAL RIGHT UNDER THE INDIAN CONSTITUTION?

Plaintiff's Arguments:
(i) Privacy has always been a natural right-

Petitioners argued that privacy is an important part of Article 21, which

guarantees the right to life and personal liberty as privacy is essential for the
dignity and autonomy of individuals, and without it, the right to life and personal
liberty would be meaningless. They contended that it is the right of the individual
to exercise control over his or her personality.

The counsel further argued that personal liberty encompasses the ability of
individuals to make decisions regarding their bodily integrity, relationships, and
personal choices, all of which are aspects of privacy. Hence, privacy should be
treated as a fundamental and inalienable right.

For this argument, the petitioners put forward the case -

R. Rajagopal vs State of Tamil Nadu (1994) in which the court recognized the
right to privacy as part of the right to life and personal liberty under Article
21. The court stated that every citizen has the right to safeguard their privacy
whether it is of their family, education etc.
This case was an important argument for the petitioners as in this case privacy was
explicitly protected by the court, especially in the context of informational
privacy.

One aspect of privacy is the right to control the dissemination of personal

information, i.e., every individual should have a right to exercise control over
his/her life and image as portrayed in the world and control the commercial use of
his/her identity. This was contented by putting forward the Second Circuit's
decision in Haelan Laboratories Inc. v. Topps Chewing Gum Inc., 202 F 2d 866
(2d Cir 1953) penned by Jerome Frank, J. defined the right to publicity as “the
right to grant the exclusive privilege of publishing his picture”. It went above
privacy and talked about individual information that could be commercially
exploited.

(ii) International Precedents:

The petitioners cited the global trend of recognizing privacy as a fundamental

human right. They referred to international human rights law and the constitutions
of several democratic countries, where privacy is considered integral to personal
liberty.
 They highlighted instruments like:

a. Universal Declaration of Human Rights (UDHR), Article 12: Protects

individuals against arbitrary interference with their privacy.
b. International Covenant on Civil and Political Rights (ICCPR), Article 17:
Recognizes the right to privacy.

Countries such as the United States, Canada, and European nations have
recognized the right to privacy, and India should follow these progressive
standards.

Defendants Arguments:
(i) No Explicit Mention of Privacy in the Constitution:
The defendants argued that the right to privacy is not explicitly mentioned in the
Constitution of India. If privacy was meant to be a fundamental right, it would
have been specifically mentioned by the framers of the Constitution.

For this argument, the defendants put forward the case of-
MP Sharma v. Satish Chandra (1954) in which the court held the judgment that
the right to privacy is not guaranteed under the Indian Constitution.
This judgment was heavily relied on by the government as it directly helped with
their argument.

(ii) Public Interest and Security:

The government argued that privacy could not be an absolute right because it
could conflict with the greater public good. The state might need to infringe upon
privacy in matters of national security, public safety, and the effective
implementation of welfare schemes

For this argument, the defendants put forward the case of-
Kharak Singh v. State of Uttar Pradesh (1962) , which concerned police
surveillance and whether it violated personal liberty under Article 21.
A 6-judge bench held that while unauthorized surveillance was unconstitutional,
privacy was not recognized as a fundamental right.

Court’s Observations:

The court acknowledged that the right to privacy is essential and should be included in the
Constitution of India as every individual should have the right to have control over his/her
life. Every individual should live with dignity for which the right to privacy is essential.
However, there would be restrictions on the exercise of this right in special circumstances.
ISSUE NO 2
WHETHER THE AADHAR PROJECT CREATES OR HAS THE TENDENCY TO
CREATE A SURVEILLANCE STATE AND IS, THUS, UNCONSTITUTIONAL ON THIS
GROUND?

Plaintiff’s Arguments:
(i) Violation of Privacy:
According to the petitioners, the Authority has the following information -
Aadhaar number, name of Aadhaar holder, whether authentication failed or was
successful, the reason for such failure, Internet Protocol (IP) address, date and
time of authentication, device ID, and its unique ID of authentication device
which can be used to locate the individual.

Authentication of Aadhaar number enables tracking, tagging and profiling of

individuals as the IP Address of the authentication device gives an idea of its
geographical location. This data collection posed a significant risk of constant
state surveillance.

(ii) Risk of Centralized Database:

The Aadhaar Act creates a database of all Indian residents and citizens with their
core biometric information, demographic information, and metadata. In light of
the enormous potential of information, the concentration of information in a single
entity, i.e., the Authority, enabling easier access to aggregated information puts the
State in a position to wield enormous power.

Given that with advancements in technology, such information can affect every
aspect of an individual’s personal, professional, religious, and social life, such
power is a threat to individual freedoms guaranteed under Articles 19(1)(a) to
19(1)(g) of the Constitution and other fundamental rights guaranteed under Article
21 (Right to informational privacy) and Article 25 of the Constitution.

The petitioners argued that linking Aadhaar to various services (bank accounts,
mobile numbers, welfare schemes) would allow the government to monitor all
aspects of a citizen's life, including financial transactions, healthcare records, and
travel history.

In S and Marper v. United Kingdom, the storing of DNA profiles and cellular
samples of any person arrested in the United Kingdom was challenged before the
ECHR. Even if the individual was never charged, their DNA profile could
nevertheless be kept permanently on record. It held that there had been a violation
of Article 8 of the ECHR. Fingerprints, DNA profiles, and cellular samples
constituted personal data and their retention was capable of affecting private life
of an individual. The Court held that invasion of privacy was not “necessary in a
democratic society as it did not fulfill any pressing social need.
Defendant’s Arguments:
(i) Aadhaar is Not a Tool for Surveillance:
The government argued that the Aadhaar project was created to empower
citizens, especially the poor, by providing them with a unique identity that
enabled access to various government welfare schemes and services. The Aadhaar
system was presented as an instrument for inclusion.

The defendants emphasized that Aadhaar helped eliminate duplication and fraud
in welfare programs, ensuring that benefits reached the intended beneficiaries
without leakages or middlemen.

For the argument, the defendants bought up the case-

D.S. Nakara vs Union of India (1983) which held the importance of welfare
schemes for disadvantageous sections of the society and thus Aadhar that is
initiated for welfare as designed to meet these constitutional obligations.

(ii) Limited Information Collection:

The Union of India maintained that Aadhaar only collected minimal data, such as
biometric information (fingerprints and iris scans) and basic demographic details.
This limited data collection, they argued, could not be used for mass surveillance
or profiling.

They also asserted that Aadhaar does not track or monitor an individual's
activities and that the system is designed in such a way that the UIDAI only
verifies identity, without maintaining records of transactions or tracking the usage
of Aadhaar numbers

For this, the defendant referred to the earlier Aadhaar-related case decided in
2015, where the court allowed the voluntary use of Aadhaar for certain services.
They argued that the court had already recognized the importance of Aadhaar in
delivering public services and had not found the project to be unconstitutional on
privacy grounds in that case.
RATIO- DECIDENDI
The Supreme Court unanimously held that privacy is an intrinsic part of the right to life
and personal liberty under Article 21 of the Constitution. The court held that privacy
includes multiple aspects such as bodily autonomy, informational privacy, and decisional
privacy (the right to make personal choices). It also recognized that privacy was integral to
other fundamental rights, such as the right to dignity, freedom of speech, and freedom of
movement.
The judgment overruled earlier decisions, such as M.P. Sharma (1954) and Kharak Singh
(1962), which had denied the existence of privacy as a fundamental right.
Although privacy is now recognized as a fundamental right, the court clarified that it is not an
absolute right. The state can impose reasonable restrictions on the right to privacy
The Right of Privacy emanates from the guarantees provided under
 Article 14 (Right to Equality),
 Article 19 (Freedom of Speech and Expression, Freedom of Movement, etc.),
 Article 21 (Right to Life and Personal Liberty)

CASE COMMENT AND ANALYSIS

The K.S. Puttaswamy vs Union of India (2015) case is a landmark judgment as it led to the
recognition of independent autonomy and personal freedom.
In this judgment Right to Privacy was recognized as a fundamental right in the constitution of
India. The court accepted that privacy is essential to human dignity as every individual has a
right to make his/her own choice concerning themselves and their family etc.
This judgment also had an impact on the Aadhar Scheme particularly in how the state could
collect, store, and use biometric and demographic data. Thus this judgment has laid the
groundwork for future judgments.
This judgment has not only led to the recognition of the right to privacy but has also accepted
that it is not absolute. In special circumstances, the government can restrict privacy rights.
Nonetheless, any privacy infringement must meet the following criteria.
The judgment also addressed concerns about informational privacy in the digital era. It
acknowledged the need for data protection laws which have recently come into effect (The
India Digital Personal Data Protection Act 2023).
However, some issues are still left unsolved. In this judgment three privacy themes were
taken up: the rationale for the right to privacy, the standard(s) of judicial review, and
horizontal application. The note concludes that there is judicial convergence on the first
theme, but unfortunately, more questions are raised than answered with respect of the other
two.
Other than this the judgment was inspired by international privacy standards. However,
India’s legal infrastructure continues to lag behind these countries. This would lead to
difficulties in the implementation of these laws in India Without comprehensive legislation,
many issues relating to the right to privacy in the digital world remain unresolved.
With growing technology the need for data protection and for safeguarding the privacy of an
individual it is needed that the legislature continue to improve the laws in this field. It is
important to have proper implementation of the laws and focus should be given to this.

REFRENCES
1. Mariyam Kamil,”Puttaswamy: Jury still out on some privacy concerns?”, Indian
Law Review, 15 Dec 2017
2. S Goel, “Right to Privacy: A Critical Analysis”, 4 Issue 3 Int'l J.L. Mgmt. & Human.
2117 (2021), Amity Law School, Noida
3. Chatgpt

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