Introduction

The right to privacy in India has evolved through judicial interpretation of the Constitution, despite not being explicitly mentioned as a fundamental right. With advancing technology, concerns around privacy of personal data and surveillance have come to the forefront. This culminated in the 2017 landmark Puttaswamy judgement by a nine-judge Supreme Court bench, which unequivocally upheld the right to privacy as intrinsic to the right to life and personal liberty under Article 21 of the Constitution. [1]

The Aadhaar scheme, which provides a unique identity number to residents based on their biometric and demographic data, has been embroiled in controversy over privacy concerns regarding collection and use of personal data. The constitutional validity of Aadhaar was challenged on grounds of violating privacy. The Puttaswamy verdict has profound implications for this challenge, as it firmly establishes privacy as a fundamental right which can only be restricted as per reasonable procedure established by law. [2]

Evolution of the Right to Privacy in India

The right to privacy has evolved in India through judicial interpretation, despite not being specifically enumerated in the Constitution. In the early years, a 1954 judgement in M.P. Sharma v. Satish Chandra upheld searches and seizures of documents for investigation as reasonable restrictions on the right to hold property, rejecting privacy concerns. [3]

In Kharak Singh v. State of U.P. (1962), the Supreme Court held that the right to privacy is not a specifically guaranteed right under Article 21. However, it ruled that unauthorized intrusion into a person’s home violates personal liberty under Article 21. [4]

The minority judgement of Justice Subba Rao in Kharak Singh case argued that right to privacy emanates from the right to life under Article 21. This view gained acceptance in Govind v. State of M.P. (1975), which recognised right to privacy as a facet of personal liberty under Article 21. [5]

Maneka Gandhi v. Union of India (1978) laid down that any procedure established by law under Article 21 must be fair, just and reasonable. This paved the way for scrutinising limitations on privacy. [6]

In R. Rajagopal v. State of T.N. (1994), the Supreme Court held that the right to privacy is implicit in the right to life and liberty guaranteed by Article 21 and must be construed in light of the freedoms in Article 19. [7]

PUCL v. Union of India (1997) held that telephone tapping infringes privacy under Article 21, subject to reasonable restrictions. Privacy was gaining recognition as an integral part of Article 21. [8]

Justice K.S. Puttaswamy v. Union of India (2017) overturned previous judgements and unequivocally declared the right to privacy to be a fundamental right, intrinsic to life and liberty under Article 21. [9]

Background of the Aadhaar Scheme

The Aadhaar scheme was introduced in 2009 to provide a unique 12-digit identity number to all Indian residents based on their biometric and demographic data. This data includes photographs, fingerprints and iris scans. [10]

The scheme was given legislative backing by the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016. The stated purposes are efficient delivery of welfare subsidies and reducing duplication. [11]

Previous Supreme Court orders on Aadhaar in 2013 allowed it to be used for PDS and LPG subsidies only. In 2015, the scope was expanded to other social welfare schemes but made it voluntary. [12]

There were concerns that the private biometric data collected could be misused for surveillance or profiling. The security of the data and potential leaks was also a worry. [13]

The Puttaswamy Judgement

Justice K.S. Puttaswamy (Retd.) filed a writ petition in the Supreme Court in 2012 challenging the Aadhaar project on grounds of violation of privacy. [14]

A five-judge bench headed by the Chief Justice set up a nine-judge Constitution bench in 2017 to conclusively rule on whether the right to privacy is a constitutionally protected fundamental right under the Constitution. [15]

The unanimous verdict held that privacy is intrinsic to life, liberty and dignity under Article 21 and also flows from the freedoms in Part III of the Constitution. The right to privacy includes informational privacy and privacy of personal data. [16]

The Court overruled previous judgements in M.P. Sharma and Kharak Singh cases that had held privacy not to be a fundamental right under the Constitution. [17]

The verdict held that any infringement of privacy must satisfy the tests of legality, need, proportionality and procedural propriety. There must be a rational nexus to the object sought to be achieved. [18]

Impact on Aadhaar

The Puttaswamy verdict has set a high threshold for justifying limitations on the right to privacy as it clearly flows from Article 21.

The Aadhaar ecosystem involves collecting, storing and sharing of sensitive personal biometric data of residents on an unprecedented scale. Parts of the Aadhaar Act and regulations may fail to satisfy the benchmarks laid down in Puttaswamy. [19]

Mandatory collection of biometric data as a condition for welfare benefits could be seen as disproportionate and unconstitutional. The judgement recognizes informational privacy that covers protection of personal data. [20]

Sharing of Aadhaar data with private entities may also not meet the compelling interest and proportionality tests, affecting the fundamental right to privacy. [21]

Thus, the Puttaswamy verdict provides strong grounds to challenge aspects of Aadhaar on the touchstone of the newly recognized fundamental right to privacy. It has profound implications for the pending petitions challenging Aadhaar. [22]

The way forward could be through stringent data protection legislation and restricting private sector access to Aadhaar data through amendments. However, the impact on Aadhaar requires more judicial scrutiny on specific aspects on the principles laid down. [23]

Conclusion

The Puttaswamy judgement marks a milestone in the constitutional jurisprudence of privacy in India. By recognizing privacy as intrinsic to Article 21, it puts privacy on a firmer footing as an enforceable fundamental right. The evolution of privacy law culminated in this verdict elevating privacy to the status of right to life and dignity. [24]

At the same time, this is not the final word. Determining the appropriate boundaries of privacy and its relationship with other rights will continue to evolve through judicial process. The impact on Aadhaar requires closer examination by applying the principles laid down in Puttaswamy. The law must keep pace with technological change while preserving constitutional freedoms. [25]

The Puttaswamy verdict lays the foundation for this evolution by unambiguously recognizing the right to privacy as a constitutionally protected fundamental right. However, the journey to define the contours of privacy in India has only begun. [26]

References

[1] Ananth Padmanabhan, “The Ruling on Privacy”, The Hindu, August 25, 2017.

[2] Alok Prasanna Kumar, “Privacy is a Fundamental Right”, The Hindu, August 24, 2017.

[3] M.P Sharma And Others vs Satish Chandra, District … Magistrate, Delhi And Others, 1954 AIR 300.

[4] Kharak Singh vs The State Of U.P. & Others, 1963 AIR 1295.

[5] Govind v. State of Madhya Pradesh, 1975 AIR 1378.

[6] Maneka Gandhi vs Union Of India, 1978 AIR 597.

[7] R. Rajagopal vs State Of Tamil Nadu, (1994) 6 SCC 632.

[8] People’s Union For Civil Liberties vs Union Of India, (1997) 1 SCC 301.

[9] Justice K.S. Puttaswamy (Retd.) vs Union Of India, (2017) 10 SCC 1.

[10] Reetika Khera, “The Aadhaar Coup”, The Hindu, March 15, 2017.

[11] The Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016.

[12] PRS Legislative Research, “Aadhaar: Constitutional status and legal implications”, August 28, 2017.

[13] Amitabh Kant, “Aadhaar is an evolving endeavour and UIDAI responsive to public concerns”, The Economic Times, August 27, 2017.

[14] Writ Petition (Civil) No. 494 of 2012, Justice K.S. Puttaswamy (Retd.) vs Union Of India.

[15] Justice K.S. Puttaswamy vs Union Of India, (2017) 10 SCC 1, para 1.

[16] Justice K.S. Puttaswamy vs Union Of India, (2017) 10 SCC 1, paras 297, 300, 303.

[17] Justice K.S. Puttaswamy vs Union Of India, (2017) 10 SCC 1, para 6.

[18] Justice K.S. Puttaswamy vs Union Of India, (2017) 10 SCC 1, para 6.

[19] Reetika Khera, “Impact of Aadhaar on Welfare Programmes”, Economic and Political Weekly, Vol. 50, Issue No. 13, 28 March 2015.

[20] Usha Ramanathan, “Aadhaar: From Welfare to Surveillance State”, The Wire, March 25, 2017.

[21] Prasanna S, “With Puttaswamy Verdict, India Has Chance to Build Robust Data Protection Regime”, The Wire, August 24, 2017.

[22] Writ Petition (Civil) No. 494 of 2012, Justice K.S. Puttaswamy (Retd.) vs Union Of India.

[23] Alok Prasanna Kumar, “The Supreme Court’s Privacy Verdict and its Impact on Aadhaar”, The Wire, August 24, 2017.

[24] Gautam Bhatia, “The Supreme Court’s Right to Privacy Judgment – I: Foundations of the Privacy Right”, The Wire, August 24, 2017.

[25] Apar Gupta, “The Supreme Court’s Privacy Verdict Sets up a Clash of Rights”, The Wire, August 24, 2017.

[26] Suhrith Parthasarathy, “The Supreme Court’s Privacy Judgment Will Shape the Future of Aadhaar”, The Wire, August 24, 2017.