Privacy And Puttaswamy For The People's Palate: Part 3 of 3

Kartikeya Sharma

23 Aug 2020 10:30 AM GMT

  • Privacy And Puttaswamy For The Peoples Palate: Part 3 of 3

    The previous part broke down the opinions of Bobde J. and Kaul J. wherein the former elucidated upon the nature of the right undertaking a study which was based on the hypothesis that privacy plays an integral role in the enjoyment of Part III rights and the latter studied the growth of technology as a formidable foe to the inherent right to privacy. In the third and final part...

    The previous part broke down the opinions of Bobde J. and Kaul J. wherein the former elucidated upon the nature of the right undertaking a study which was based on the hypothesis that privacy plays an integral role in the enjoyment of Part III rights and the latter studied the growth of technology as a formidable foe to the inherent right to privacy. In the third and final part of this series, I will attempt to simplify the opinion of Nariman J.

    Preliminary contentions and arguments

    After summarizing the submissions made by the counsels for various parties, Nariman J. proceeds to rely upon early instances of privacy claims from the United Kingdom. The significance of Semayne's case is emphasized upon wherein it was emphatically stated that each man's home is his castle and his fortress. Similarly, the judgments in Huckle v. Money[1], Entick v. Carrington[2] and Da Costa v. Jones[3] showed the zealousness to protect privacy in a myriad of circumstances.

    It is noted that while the judgments in M.P. Sharma and Kharak Singh were pronounced in the Gopalan era, it should not have made a difference as India was already a signatory to the Universal Declaration of Human Rights which stated that every individual shall be protected from arbitrary interference with his privacy, family, home or correspondence.[4] Further, it is the responsibility of Parliament to give effect to international agreements as per Article 253 of the Constitution and unless there is anything to the contrary in municipal law, international law would be a part of the laws of India and would be read into or considered as a part of the fundamental rights. [5]

    After an analysis of M.P. Sharma and the majority opinion in Kharak Singh, Nariman J. is satisfied that in no way have either of the judgments held that there exists no fundamental right to privacy. Thereafter, he delves into the argument of the Attorney General that the framers of the Constitution had expressly left out the right to privacy from Part III. To tackle this, it is reminded that the Constitution is to be interpreted by the Court per the changing needs of the people. Post Maneka Gandhi and the more recent judgment in Mohd. Arif v. Registrar, Supreme Court of India[6]( majority opinion authored by Nariman J.) the Court has emphatically declared substantive due process to be a part of Article 21 jurisprudence.

    The Attorney General and Mr. Aryama Sundaram, appearing for the State of Maharashtra, contended that the right was vague and amorphous that it could not be classified as a fundamental right. This was shut down by Nariman J. on the ground that there may be multiple facets of the right which are interests pertaining to the physical sphere as well as matters of the mind, all of which have to recognized and protected. The judgment of the Supreme Court of the United States in Stanley v. Georgia[7] held that possession of obscene material would not be protected under free speech, if the material was found to be within the confines of an individual's home it would fall within the domain of constitutionally protected privacy. This was relied upon to establish that the right to free speech and the right to privacy are different in the way they operate.

    Mr. Sundaram argued that there are many facets of privacy that are not protected such as information furnished for taxation purposes, information supplied for census survey etc. This was termed as putting the cart before the horse as taxation laws do require information for various purposes but the laws that mandate the same also have safeguards with regard to the information provided. Next, the Additional Solicitor General pointed out that multiple statutes including the Right to Information Act, 2005, Income Tax Act, 1961, etc. protect the privacy of individuals, therefore the need to incorporate the same as a fundamental right does not arise. Nariman J. stated that while statutory provisions may be altered at the mere whim of the legislature that enacted the statute, the same would not be possible for Part III of the Constitution which is slightly more permanent in nature. Privacy being an inalienable right of a human being needs to be guaranteed regardless of the elected government of the day and while a statute may protect some values associated with privacy, a statute may also violate privacy without a legitimate reason and for that reason there would be a need to have a fundamental right to check the statute's overreach.

    Mr. Rakesh Dwivedi, appearing on behalf of the State of Gujarat, relied upon the 'reasonable expectation of privacy' test laid down in Katz v. United States[8] to propose a middle ground between a right to privacy in every instance and complete denial of the same. But the abovementioned test has been criticized subsequently in the United States[9] and it failed to impress Nariman J. as there was a circular flaw in the test which was that there was only an invasion of privacy if there was a reasonable expectation of privacy attached. Instead there ought to be a basis in law for the expectation to be legitimate. An interesting argument was put forth by Mr. Gopal Sankaranarayanan that since fundamental rights cannot be waived and if privacy was to become a fundamental right, it would create many problems such as collection of information mandated by statutes that would be protected by the right to privacy. This was rejected on the ground that while collecting information, it would be the duty of the State to ensure that the privacy attached to the information would be safeguarded and the same would not amount to a waiver. Further, if there was voluntary dissemination on a public forum, then it would not be classified as private information anymore.

    Propounding the right to privacy

    Nariman J. proceeds to deal with the core question which is whether the right to privacy resides primarily in Article 21. He starts the discussion by relying upon the dissent of Brandeis J. in Olmstead v. United States[10] wherein the judge took a liberal view of the word 'search' in the Fourth Amendment to the United States Constitution and like a soothsayer predicted advances in science that would allow for an increased invasion of privacy. The next judgment in focus was Gobind, which as per Mr. Sundaram did not declare the existence of a right to privacy. This did not seem to bother Nariman J. as he opined that even without Gobind declaring the right to privacy as fundamental, there were other judgments that had the chance to declare the existence of the right in unequivocal terms.[11] In the Indian context, privacy would be divided into bodily privacy, informational privacy and decisional privacy. The first would be grounded in Articles 19(1)(d) and (e) read with Article 21, the second would be protected by Article 21 and the third would be traced to Articles 19(1)(a) to (c), Article 20(3), Article 21 and Article 25.

    Thereafter reliance was placed upon John Stuart Mill's work 'On Liberty' wherein he proposed that an individual's liberty may only be interfered with if it has the effect of harming another individual. An individual's right over matters of his mind is absolute which is to say, he is the sovereign regarding those matters. Liberty of thought and expression has been enshrined in the Preamble to the Constitution and is also reflected in Articles 19(1)(a), 20, 21, 25 and 26. The source of inspiration for introducing liberty into the Preamble is the Declaration of the Rights of Man and of the Citizen, 1789 particularly Article 4 which defined liberty as being able to do something without causing harm to anyone else.

    Nariman J. cited Thalappalam Service Co-operative Bank Limited v. State of Kerala[12] to prove that the legislature has tacitly conceded to the existence of the right to privacy as is evidenced by Section 8(1)(j) of the Right to Information Act, 2005 and that it is too late in the day to go back on this proposition.

    The holy dissent delivered by Khanna J. in A.D.M. Jabalpur is dissected to highlight the correct position of law with regard to the status of fundamental rights. The dissent did not subscribe to the view that Article 21 conferred the right to life and personal liberty on an individual and did not agree with the proposition that Article 21 was the sole repository of life and personal liberty. Instead, rights such as that under Article 21 are inalienable and are inherent in every individual. The purpose behind inserting Article 21 was to ensure laws that have the effect of affecting 'life' or 'personal liberty' follow a procedure to do the same. While the abovementioned judgment was overruled by the judges in the present case, it was observed by Nariman J. that the 44th Amendment to the Constitution in the year 1978 nullified the majority opinion in A.D.M. Jabalpur by amending Article 359 of the Constitution to state that where a proclamation of emergency is in place, the President may by order suspend, for the duration of the proclamation, the enforcement of Part III rights except those under Articles 20 and 21.


    Nariman J. over the course of his tenure as a judge of the Supreme Court has delivered many pathbreaking judgments on various questions of constitutional importance. It would not be an exaggeration to term him as an all-rounder, able to quickly understand the issues at hand and deal with them. In the case at hand, he dons the role of a constitutional scholar who pays a gracious tribute to three great dissenting opinions of Justice Fazl Ali in Gopalan, Justice Subba Rao in Kharak Singh and Justice H.R. Khanna in A.D.M. Jabalpur, explaining in great detail the foresight and impact of each in the development of constitutional law as we understand. Nariman J. traces the origins of privacy from the early 1600s in Tudor England and lays the foundation for the discussion on privacy in the present context. His love for history and providing a factual background to the legal questions is demonstrated by the detailed footnotes containing pocket sized lessons in history. Quite importantly, Nariman J. reaffirms the existence of 'substantive due process' are part of our constitutional jurisprudence. Interestingly, this judgment was delivered merely two days after the landmark judgment in Shayara Bano v. Union of India[13] wherein Nariman J. demolished the decision in Mcdowell's v. State of Andhra Pradesh[14] which took the stand that Courts were not to sit in judgment over decisions of Parliamentary wisdom. To summarize, the present opinion, with clarity and lucidity, expounds the inalienable right to privacy as being intrinsically ingrained in Part III of the Constitution.
    Views are personal only.

    [1] 95 ER 768 (1763)

    [2] 95 ER 807 (1765)

    [3] 98 ER 1331 (1778)

    [4] Article 12, UDHR

    [5] Bachan Singh v. State of Punjab, (1980) 2 SCC 684; Vishaka v. State of Rajasthan, (1997) 6 SCC 241

    [6] (2014) 9 SCC 737

    [7] 22 L. Ed. 2d 542

    [8] 389 U.S. 347 (1967)

    [9] See Minnesota v. United States (Scalia J. concurring), 525 U.S. 83, 119 S. Ct. 469 at 477 (1998) and Kyllo v. United States, 533 U.S. 27, 121 S. Ct. 2038 at 2043 (2001)

    [10] 277 U.S. 438 (1928)

    [11] R. Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632; PUCL v. Union of India, (1997) 1 SCC 301

    [12] (2013) 16 SCC 82

    [13] (2017) 9 SCC 1

    [14] AIR 1996 SC 1627

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