A CRITIQUE ON JUSTICE K.S. PUTTASWAMY Vs UNION OF INDIA

Authors – GARIMA OBEROI & ANKUSH GARG, STUDENTS OF AMITY UNIVERSITY, NOIDA, UTTAR PRADESH

INTRODUCTION

The drafters of the Constitution described their vision of a society in which fundamental ideals would be realised by emphasising, among other things, liberty and dignity. Individual dignity is assured by privacy and its associated ideals, and it is only when life can be experienced with dignity that liberty has actual meaning. Privacy guarantees dignity and was a basic goal that the protection of life and liberty was meant to attain.[1] Privacy is multidimensional. Privacy can be heteronormative privacy, spatial privacy and liberty-based privacy[2]. Historically, privacy has never been an important topic of discussion. The concept of privacy was first published in 1972 in colonial history; however, it took 44 more years for David Vincent to publish the first monograph on history of privacy. However, last twenty years have been about technology and the question of privacy is being raised.[3] This article will talk about critical analysis of right to privacy in India with special reference to Justice K.S. Puttaswamy v. Union of India.

FACTS OF THE CASE

The case was filed by retired Justice K.S. Puttaswamy and Mr Pravesh Khanna in relation to the Aadhar project. With the creation of UIDAI or Unique Identification Authority of India, the Aadhar scheme was conceptualized in 2006 and launched in 2009. The UIDAI assigned inhabitants of India a 12-digit identifying number called an Aadhaar number.[4]Justice Puttaswamy filed a plea in an effort to question the constitutionality of the Aadhaar card programme.[5]

The National Informatics Centre (NIC) was given permission on March 3, 2006, by the Department of Information Technology, Ministry of Communications and Information Technology, Government of India, to carry out the project titled “Unique Identification for BPL Families” for a duration of more than a year. A Processes Committee was therefore established on July 3, 2006 to recommend the procedure for updating, modifying, adding, and deleting data. On November 26, 2006, this committee produced a document titled “Strategic Vision Unique Identification of Residents.” Based on this, the Empowered Group of Ministers (EGoM) was established on December 4th, 2006 to compile the National Population Register under the Citizenship Act, 1955 and the Department of information technology’s proposal for a unique identification number.[6]

A bill titled “National Identification Authority of India Bill, 2010” was introduced in the Rajya Sabha on 3^rd December 2010 in accordance with the Chairman of UIDAI’s request that UIDAI be given a legal foundation.

ISSUES IN THE CASE

1. Whether the Aadhar Act violate fundamental rights
2. Does right to privacy come under Article 21
3. Whether section 47, 33, 57, 29, 59, regulation 3 and 4, are valid?

DECISION OF THE CASE

The majority opinion, by Dr. D.Y. Chandrachud, J. (on behalf of three other Judges), and five concurring judgments written by the other five Judges have established, in no clear terms and most authoritatively, that the right to privacy is a fundamental right.

According to Dr D.Y. Chandrachud, privacy is a byproduct of the individual’s freedom to exercise control over his or her personality. It derives from the idea that there are certain rights that are natural to or inherent in a human being. Natural rights are inalienable because they are inextricably linked to human identity. The State does not give natural rights. They are inherent in humans because they are human. They exist in everyone, regardless of class, stratum, gender, or orientation. Personal liberty and life are unalienable rights.

S.A. Bobde enumerated that privacy is a crucial prerequisite for enjoying any of the guarantees in Part III. As a result, when asserted by right holders before constitutional courts, the right to privacy may be found not only in Article 21, but also in any of the other protections in Part III. Articles 19(1), 20(3), 25, 28, and 29 are all rights that are aided and made relevant by the exercise of privacy in the existing condition of affairs.

According to R.F. Nariman, J, fundamental right to privacy in the context of India would cover three aspects- (i) privacy that involves the person, (ii) information privacy and, (iii) privacy of choice. Privacy that concerns the person is when the state infringes on a person’s physical bodily rights, such as the ability to travel freely. Informational privacy is concerned with a person’s thought rather than his body, and hence recognises that an individual may have control over the content that is personal to him. Use of such information without any supervision may thus result in a violation of this right. Lastly, individual sovereignty over essential personal decisions is protected by choice privacy. These elements have a functional link with dignity. In this sense, privacy is a tenet of human dignity. The Preamble recognises the importance of human dignity as a fundamental value. Furthermore, human dignity is recognised as a basic right and a feature not only of Article 21, but also of the right to equality (Article 14) and of the bouquet of freedoms provided in Article 19. As a result, privacy as a right is inextricably linked to freedom, liberty, and dignity.[7]

For the question whether Aadhar Act is valid, certain issues were raised, certain sections were questioned. The question regarding validity of the Aadhar Act, the court declared that Section 47 of the Aadhaar Act cannot be declared illegal since it does not allow an individual who discovers a breach of the Aadhaar Act to start any criminal proceedings. The question on requirement of demographic and biometric information, the court said that requirement under the Aadhaar Act to provide demographic and biometric information does not infringe on the fundamental right to privacy. The parts of the Aadhaar Act demanding demographic and biometric information from residents to obtain an Aadhaar Number pass the threefold test put out in this judgement, and hence cannot be deemed unconstitutional.

Validity of collection, storage, retention, use, sharing and surveillance of information was questioned to which the court said (i) collection of data, its storage and use does not violate fundamental Right of Privacy, (ii) Aadhaar Act does not create an architecture for pervasive surveillance, and (iii) Aadhaar Act and Regulations provides protection and safety of the data received from individuals. To the question whether right to food, shelter etc. envisaged under Article 21 shall take precedence on the right to privacy of the beneficiaries, the court said that while enlivening the right to food, right to housing, and so on contemplated in Article 21, the State cannot infringe on beneficiaries’ right to privacy, nor may the former be given precedence over the latter. Section 29 was challenged on the ground that it permits sharing of identity information. To this, the court said that the provisions of Section 29 is constitutional and does not deserve to be struck down.

The court held that Section 33 cannot be considered to be unlawful since it allows the use of Aadhaar data for police investigations, nor can it be stated to breach the protection given by Article 20. (3). It was argued that the extensive and unrestricted scope of actions covered by Section 57, as well as the types of private businesses authorised to utilise Aadhaar, is totally disproportionate to the Act’s means and purposes, and that there are no compelling State interests. The court held that Section 57 is unlawful and invalid to the degree that it allows the State or any body corporate or individual to utilise Aadhaar in accordance with any contract to that effect. It was argued that collecting biometric and demographic information prior to the Aadhar Act in notification dated 28.01.2009 was not backed by any law as it violated fundamental right to privacy. The court said that Section 59 has validated all activities conducted by the Central Government in accordance with the notifications dated 28.01.2009 and 12.09.2009, and all actions shall be regarded to have been taken in accordance with the Aadhaar Act. With regards to collecting the information of children between 5 to 18 years, the court said that to uphold the legality of Regulations 3 and 4 of the Aadhaar (Enrolling and Update) Regulations, 2016, parental permission for giving biometric information under Regulation 3 and demographic information under Regulation 4 must be read for enrolment of children aged 5 to 18 years.

CONCLUSION

The Court’s broad interpretation of the right to privacy has opened the door to a variety of claims. While the precise bounds of the right will be determined on a case-by-case basis, it is evident that privacy claims will frequently have to be balanced against other conflicting interests. In the lack of a stated hierarchy among the many rights protected by Part III of the Constitution, each case will be decided solely on the circumstances at hand and judicial interpretation. For example, may a legislation against marital rape compromise on a married woman’s dignity, which is vital to her privacy and liberty, in order to protect the family’s “private affairs”? The decision is just a beginning to various interpretations of our rights.

REFERENCES

• https://www.lawyerservices.in/
• https://uidai.gov.in/images/targeted_delivery_of_financial_and_other_subsidies_benefits_and services_13072016.pdf
• http://lawtimesjournal.in/justice-k-s-puttaswamy-retd-vs-union-of-india/
• https://blog.ipleaders.in/justice-k-s-puttaswamy-retd-and-anr-vs-union-of-india/

---

[1] (2017) 10 SCC 1.

[2] Torsha Sarkar, privacy through ages: India’s privacy jurisprudence in gender and sexuality rights,12.2 JILS, 55-60 (2021).

[3] Amsterdam University Press, legislating privacy: technology,social values and public policy (Oct,29,2022,17:30) https://www.degruyter.com/document/doi/10.1515/9789048540136-003/html .

[4] NLU Delhi, Justice K.S. Puttaswamy & Anr. Vs Union of India & Ors (Oct,30,2022,12:50) https://privacylibrary.ccgnlud.org/case/justice-ks-puttaswamy-ors-vs-union-of-india- ors#:~:text=The%20nine%20Judge%20Bench%20in,of%20dignity%2C%20autonomy%20and%20liberty.   

[5] AIR 2017 SC 4161.

[6] Ibid.

[7] AIR 2017 SC 4161.