On 24 August 2017, a nine judge bench of the Supreme Court of India handed down its decision in the important constititutional case of Puttaswamy v Union of India [pdf]. In a remarkable and wide ranging 547 page judgment the Court ruled unanimously that privacy is a constitutionally protected right in India. This is landmark case which is likely to lead to constitutional challenges to a wide range of Indian legislation.
The case arose out of a challenge to a constitutional challenge to the Aadhaar project, which aims to build a database of personal identity and biometric information covering every Indian. More than a billion Indians have so far been registered in the Aadhaar programme, which sees citizens issued with a 12-digit number that aligns to specific biometric data such as eye scans and fingerprints. Registration is now become mandatory for filing tax returns, opening bank accounts, securing loans, buying and selling property or even making purchases of 50,000 rupees (£610) and above.
In 2012, Justice K.S. Puttaswamy (Retired) filed a petition in the Supreme Court challenging the constitutionality of Aadhaar on the grounds that it violates the right to privacy.
The Government argued that there was no constitutional right of privacy in view of a unanimous decision of eight judges in M.P. Sharma v. Satish Chandra ( SCR 1077) and a decision by a majority of four judges in Kharak Singh v. State of Uttar Pradesh ( 1 SCR 332).
The case came before a three judge Bench of the Court which, on 11 August 2015, ordered that the matter should be referred to a larger Bench of the Court. On 18 July 2017, a five judge Constitution Bench ordered the matter to be heard by a nine judge Bench. While it awaited clarification on the right to privacy, the bench hearing the constitutional challenge to Aadhaar passed an interim order restricting compulsory linking of Aadhaar for benefits delivery
The nine judges of the Court gave six separate opinions, producing what must be a contender for the longest reasoned judgment ever produced by a court. These judgments defy short summary and only a few key themes can be picked out.
The leading judgment is a tour de force, given on behalf of four judges by Dr D Y Chandrachud J in 266 pages. It deals, in detail, with the Indian domestic case law on privacy and the nature of constitutional rights. It also considers Comparative Law on Privacy (from England, the US, South Africa, Canada, the European Court of Human Rights and the Inter-American Court of Human Rights). Various criticisms of the privacy doctrine – from Bork, Posner and feminist critics – are addressed.
The problem for the Petitioners was that the Indian Constitution [pdf] does not contain an explicit privacy right. Nevertheless, the Indian Constitution is a living instrument. The Courts have sought to give effect to the “values” which the Constitution it contains by interpreting express fundamental rights protections as containing a wide range of other rights. The crucial provision for this purpose is Article 21 which provides that
“No person shall be deprived of his life or personal liberty except according to procedure established by law”
Chandrachud J points out that this provision has been interpreted as containing, inter alia, the rights to a speedy trial, legal aid, shelter, a healthy environment, frredom from torture, reputation and to earn a livelihood (for a list see ). Privacy is an incident of fundamental freedom or liberty.
In an important section of the joint judgment headed “Essential Nature of Privacy”, Chandrachud J analyses the concept of privacy as being founded on autonomy and as an essential aspect of dignity ( to ):
“Dignity cannot exist without privacy. Both reside within the inalienable values of life, liberty and freedom which the Constitution has recognised. Privacy is the ultimate expression of the sanctity of the individual. It is a constitutional value which straddles across the spectrum of fundamental rights and protects for the individual a zone of choice and self-determination” 
In the next section of the judgment Chandrachud J considers “Informational Privacy”, referring to a range of academic writing. In particular, the judgment includes an infographic from an article by Bert-Jaap Koops et al., “A Typology of Privacy” to illustrate the fundamental notions of privacy:
The judgment refers with approval to the 2012 Report of the Expert Group on Privacy [pdf] – which sets out nine principles (which have much in common with the EU data protection principles).
The conclusions are set out at pages 260-265 of the joint judgment. It is held that privacy is a constitutionally protected right which emerges, primarily, from Article 21 of the Constitution. This is not an absolute right but an interference must meet the threefold requirement of (ii) Legality; (ii) the need for a legitimate aim and (iii) proportionality (p.264). It is also noted that, as informational privacy is a facet of the right to privacy the Government will need to put in place a robust regime for data protection.
Two other important points are dealt with in the joint judgment.
Firstly, it emphasises the fact that sexual orientation is an essential attribute of privacy thus casting doubt on the case of Suresh Kumar Koushal v. Naz Foundation (2014) which upheld section 377 of the Indian Penal Code, which effectively criminalizes same-sex relationships between consenting adults. A reconsideration of Suresh Koushal is pending before a constitution bench of the Supreme Court.
Secondly, Chandrachud J overturns the judgment of his father (Chandrachud CJ) in the notorious case of ADM Jabalpur v Shivakant Shukla (1976) which held that fundamental rights could be suspended during the Emergency (). Though the ADM Jabalpur judgment was nullified by 44th constitutional amendment it has now finally been put to rest. In his concurring judgment Sanjay Kishan Kaul J commented
“the ADM Jabalpur case … was an aberration in the constitutional jurisprudence of our country and the desirability of burying the majority opinion ten fathom deep, with no chance of resurrection”
R F Nariman J gave a judgment of 122 pages and four other judges gave substantive concurring judgments.
By its order the Court ruled that the right to privacy is protected as part of the right to life and fundamental liberty under Article 21. The case was referred back to the original bench three judges for decision on the merits.
This decision has been recognised as being of great legal and political significance. The Opposition Congress party leader said that it “will rank among the most important judgments delivered by the Supreme Court since the advent of the constitution of India.” The Hindustan Times commented that “The country could not have got a better gift from the judiciary for its 70th year of independence”. The case has been seen as a major setback for the Modi Government.
A striking feature of the joint judgment is the detailed treatment of issues of digital privacy which are of increasing important both in India and internationally.
The future of the Aadhaar programme has been placed in doubt and, in the light of the comments of the majority there is a strong possibility that the Supreme Court will now strike down legislation criminalising same-sex relationships. The joint judgment makes it clear that the Indian Government is now under an obligation to establish a data protection regime to protect the privacy of the individual.
The constitutional right to privacy can now be used to challenge to bans on beef and alcohol consumption in many Indian states. BJP-dominated governments around the country implemented the bans as part of their efforts to enshrine Hindu religious practices into the law.
The decision has been welcomed by Indian and international commentators, it puts the right to privacy at the heart of constitutional debate in the world’s largest democracy and is likely to provide assistance and inspiration for privacy campaigners around the world.
Hugh Tomlinson QC is a specialist in media and information law at Matrix Chambers and an editor of Inforrm.