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Contradictions and Unanswered Questions
In reading and understanding the Supreme Court’s judgment in K Puttaswamy v Union of India, the Supreme Court’s articulation of the right to privacy carries within it certain contradictions in thought and approach. Given that this judgment was delivered in the absence of a specific fact situation, its true meaning may only become evident as the Court proceeds to apply it in specific cases. On this front, as we may find out in the future, there is a gap between what the judges are “saying” in this judgment and what they may end up “doing” in the future.
The nine-judge constitution bench’s judgment in K Puttaswamy v Union of India (2017) has been welcomed almost universally, and, somewhat surprisingly, even by the Union of India, which had argued that the Constitution did not envisage a fundamental right to privacy (Indian Express 2017). The Supreme Court’s judgment not only sets aside two earlier precedents (M P Sharma v Union of India [1954] and Kharak Singh v State of UP [1964]) that had held that there was no fundamental right to privacy in India, but has articulated a detailed conception of privacy that could effectively amount to a new charter of rights for all.
This hearing of the nine-judge bench was necessitated because of the divergence in judicial views on the constitutional position of the right to privacy over the years. The M P Sharma and Kharak Singh judgments seemed to say that there is no constitutional basis for a fundamental right to privacy but multiple judgments since seem to have said otherwise. The Court’s final order states that the M P Sharma and Kharak Singh judgments are no longer good law insofar as the fundamental right to privacy is concerned, and all the subsequent judgments that have spoken about the fundamental right to privacy are necessarily right.
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