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The Puttaswamy Judgment

Exploring Privacy Within and Without

Alok Prasanna Kumar (alok.prasanna@vidhilegalpolicy.in) is senior resident fellow at the Vidhi Centre for Legal Policy, and is based in Bengaluru.

The Supreme Court’s judgment in K Puttaswamy v Union of India (2017) presents a paradigm shift in the Court’s understanding of fundamental rights under the Constitution. While the right to privacy has been acknowledged in some form or the other since Gobind v State of Madhya Pradesh (1975), what the Puttaswamy judgment represents is a decisive development in the jurisprudence.

EPW thanks Alok Prasanna Kumar for putting t ogether this set of articles exploring the implications of the Puttaswamy judgment declaring privacy a fundamental right.

The Supreme Court’s judgment in K Puttaswamy v Union of India (2017) presents a paradigm shift in the Court’s understanding of fundamental rights under the Constitution. While the right to privacy has been acknowledged in some form or the other since Gobind v State of Madhya Pradesh (1975), what the Puttaswamy judgment represents is a decisive development in the jurisprudence. Privacy is not just an aspect of existing fundamental rights or to be looked for in strained interpretational exercises; it is now accepted as a necessary component of fundamental rights as a whole. Fundamental rights jurisprudence—which moved from the straitjacket of A K Gopalan v State of Madras (1950), to tentative unloosening in R C Cooper v Union of India (1970), and later on to the “golden triangle” theory expounded in Maneka Gandhi v Union of India (1978)has become richer, deeper and more meaningful in light of the six opinions of the Supreme Court’s unanimous verdict in the Puttaswamy case.

The Puttaswamy judgment was delivered in the context of the challenges to the Aadhaar law and the use of the Aadhaar in multiple contexts. But, that should not be the only context in which the judgment is understood. It has come at a particular moment in India’s history; when the state’s reach into personal lives of citizens expands even as it withdraws from an active role in the economy; when migration is taking more and more people out of villages and into cities; and when the vast changes in technology and business practices have made individuals’ data such a lucrative commodity. All of these processes are happening simultaneously, bringing new and dizzying changes to the Indian polity; some for the better, some for the worse. The Supreme Court’s formulation in the Puttaswamy case can perhaps be seen as a lodestar to the state and citizens alike, to help make sense of their rights and duties in a rapidly changing and evolving situation.

The impact of the Puttaswamy judgment, therefore, goes far beyond just Aadhaar and data protection. The pages of this journal have already carried articles on the topic, relating to reproductive rights (Ghosh and Khaitan 2017), right to information (Sridhar 2017), and data protection (Tarafder and Basu 2017). Even these, interesting and thoughtful as they are in content, have only scratched the surface of the topic. Even the articles commissioned for this special feature, covering a diverse terrain from beef ban laws and gay rights, to data protection and artificial intelligence, only hint at the landscape of the Puttaswamy judgment, waiting to be explored still.

Of the six opinions delivered by the Supreme Court, the one which presents the most interesting argument from a constitutional perspective is that of Justice J Chelameswar who uses the metaphor of “dark matter” for the Constitution, which, while not being obvious in terms of text, continues to influence its interpretation and application. Suchindran B N (p 36) explores this approach in more detail and what it represents in the context of the interpretation of the Constitution.

One of the curious, inexplicable contradictions of the plurality opinion authored by Justice D Y Chandrachud is that the Supreme Court’s problematic judgment in Mr X v Hospital Z (1998), as regards patient confidentiality of persons suffering from HIV/AIDS, is upheld as correct, while, at the same time, recognising informational privacy as a core element of the right to privacy. Since the judgment was delivered, multiple legislations have come into place concerning patient confidentiality and Dhvani Mehta (p 40) takes a close look at what this judgment means for these laws and patient confidentiality in India in general.

One of the undeniable positives of the Puttaswamy judgment has been the categorical overturning of the atrocious judgment of the Supreme Court in Suresh C Koushal v Naz Foundation (2014), paving the way for the Supreme Court to strike down Section 377 of the Indian Penal Code, 1860 in the pending constitution bench case. But, the judgment also opens many further doors in the context of lesbian, gay, bisexual, transgender and queer (LGBTQ) rights in India. Danish Sheikh (p 51) explores the potential for expanding LGBTQ rights in India beyond just decriminalising homosexuality.

Faizan Mustafa and Vivek Mukherjee (p 54) explore the possibility of the Puttaswamy judgment being used to question the constitutional validity of draconian “beef ban” laws, which, apart from criminalising the trade of butchers, also affects the rights of individuals to eat what they choose. Most significantly, as they point out, it opens the possibility of re-examining the Supreme Court’s entirely flawed approach to these laws, which has been dominated by the atrocious seven-judge-bench judgment in State of Gujarat v Motipur Kureshi Jamaat (2005), thereby restoring the primacy of fundamental rights under the Constitution.

Along the same lines, Suhrith Parthasarathy (p 43) breaks down what is exactly wrong about the various “beef ban” laws in force in several Bharatiya Janata Party states and how the existing judgment will provide a new scope for challenging the worst of the provisions. While the Bombay High Court has already struck down some parts of the Maharashtra Animal Preservation Act, 1976, and the appeal is currently pending in the Supreme Court, the Puttaswamy judgment expands the scope of judicial review over this and other such laws.

Should data be viewed through the lens of property rights alone or through the larger paradigm resting on social and constitutional values? An argument for the former was made in these pages (Tarafder and Basu 2017), but Jyoti Panday (p 62) takes issue with this approach and argues instead that the Puttaswamy judgment calls for the latter approach to be adopted in protection laws. This, as she points out, is not to be understood as privileging social values over individual ones, but conceiving of privacy in a manner that addresses both.

Artificial intelligence is often pitched as the next big revolutionary technology on par with the wheel and the fire that will change the way humans live. While some of it is no doubt exaggerated propaganda, it is true though that algorithms are shaping the way we live and the world around us, whether we know it or not. Suchana Seth (p 66) addresses the impact of the Puttaswamy judgment on the use (and potential misuse) of artificial intelligence and machine learning technology.

Fears have been raised about what the recognition of privacy as a fundamental right might do for businesses and other large-scale initiatives, such as financial inclusion. Malavika Raghavan (p 58) addresses these in her article, which looks at how, far from hindering, the Puttaswamy judgment, in fact, provides clarity to the task of financial inclusion and enables easier access to finance for those sections of Indian society that did not have any.

As many commentators have noted, there was not one woman on the nine-judge bench of the Supreme Court that heard this case. Yet, the right to privacy is of great importance to the rights of women, who, much before the modern surveillance state was set up, have been subjected to surveillance at a far more intrusive and personal level. Aparna Chandra (p 46) uses this framework to unpack what this judgment means in the context of expanding women’s rights in India.

The impact and implications of the Puttaswamy judgment on Indian law and society will continue to be seen, felt
and debated for years to come. Will the Supreme Court carry forward the revolutionary potential of this judgment in expanding the rights of individuals against the state? Or, will we remember it as an outlier that remained in the realm of rhetoric? Or, will we see an uneven expansion with some frontiers being pushed forward towards a progressive expansion while others remain in hidebound silos?

It is always unsafe to forecast based on past experience, especially in matters of human conduct. Rest assured though, the Puttaswamy judgment is likely to be pressed into service by lawyers and litigants alike to make a variety of rights-based claims. The articles carried in this issue only hint at the width of the areas in which this judgment will have an impact.

The Puttaswamy judgment will not just be used to put forward claims of citizens. It is possible that it will be used to avoid accountability by public servants. There have already been instances of such use. More troublingly, the courts also seem to have trouble in understanding that public servants cannot be allowed to use their position to avoid scrutiny for their actions. The Madhya Pradesh High Court, for instance, in Democratic Lawyers Forum v Union of India (2017) did not seem to think that there was any problem with a public servant meeting with the head of the Rashtriya Swayamsevak Sangh at its office. Interestingly, it cites the Puttaswamy judgment to support this somewhat bizarre conclusion, forgetting completely the distinction between the public life of a private citizen and the public duties of a public servant.

Still, the broad principles laid down in the Puttaswamy judgment will need much more debate and discussion before they are concretised as core rights under the Indian Constitution. The judgment has kick-started an exciting era of Indian constitutionalism and law, and the present special issue is another step towards widening the debate into further fields.

References

A K Gopalan v State of Madras (1950): AIR, SC, p 27.

Democratic Lawyers Forum v Union of India (2017): SCC Online, MP, 1284.

Ghosh, Arijeet and Nitika Khaitan (2017): “A Womb of One’s Own: Privacy and Reproductive Rights,” Economic & Political Weekly, Vol 52, Nos 42–43, viewed on 17 November 2017, http://www.epw.in/engage/article/womb-ones-own-privacy-and-reproductive-rights.

Gobind v State of Madhya Pradesh (1975): SCC, SC, 2, p 148.

K Puttaswamy v Union of India (2017): SCC Online, SC, 996.

Maneka Gandhi v Union of India (1978): SCC, SC, 1, p 248.

Mr X v Hospital Z (1998): SCC, SC, 8, p 296.

R C Cooper v Union of India (1970): SCC, SC, 1, p 248.

Sridhar, Madabhushi (2017): “Right to Privacy and RTI Act though ‘Fundamental,’ Not Absolute Right,” Economic & Political Weekly, Vol 52,
No 38, pp 29–31.

State of Gujarat v Motipur Kureshi Jamaat (2005): SCC, SC, 8, p 534.

Suresh C Koushal v Naz Foundation (2014): SCC, SC, 1, p 1.

Tarafder, Agnidipto and Arindrajit Basu (2017): “Taking a Fresh Guard: Rethinking Data in Light of the Privacy Judgment,” Economic &
Political Weekly
, Vol 52, No 40, pp 18–23.

Updated On : 27th Dec, 2017

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