{"id":6532,"date":"2017-08-26T13:18:17","date_gmt":"2017-08-26T07:48:17","guid":{"rendered":"https:\/\/www.naavi.org\/wp\/?p=6532"},"modified":"2023-06-14T06:34:44","modified_gmt":"2023-06-14T01:04:44","slug":"concatenating-the-individual-conclusions-of-the-privacy-judgement","status":"publish","type":"post","link":"https:\/\/www.naavi.org\/wp\/concatenating-the-individual-conclusions-of-the-privacy-judgement\/","title":{"rendered":"Concatenating the individual Conclusions of the Privacy Judgement"},"content":{"rendered":"
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In continuation of our previous article on the “Hashing of the Privacy Judgement”<\/strong><\/a> we can now look at the six pieces of individual judgement and the end notes in each of these judgement s that can be considered as “Judgmental Conclusions not forming part of the final order”. This is the second level of the 547 page judgement that we can try to explore.<\/p>\n

Before penning down these end-notes, the judges who authored their respective parts of the judgement have presented pages and pages of observations basically recollecting the earlier judgements. Technologists should appreciate the huge efforts involved in “Cutting and Pasting” from volumes of judgements from the early part of the last century to the current days not only in the honourable Supreme Court but also other Courts as well.<\/p>\n

Many of these judgements were from other qualified Judges mostly by smaller benches or subordinate Courts. Hence the current consolidation represents an over riding of earlier contrarian opinions and brings the development of Jurisprudence on Privacy Rights in India to a mile-stone stage.<\/p>\n

In particular, two judgements namely M.P Sharma (1954) and Karakh Singh (1964) judgements were declared as over ridden.\u00a0the first \u2013 M P Sharma v Satish Chandra,\u00a0District Magistrate, Delhi1 was rendered by a Bench of eight\u00a0judges and the second, in Kharak Singh v State of Uttar Pradesh\u00a0was rendered by a Bench of six judges. These decisions, contained observations that the Indian\u00a0Constitution does not specifically protect the right to privacy. They were \u00a0based on the principles expounded in A.K.Gopalan Vs State of Madras (1950) which construed each provision contained in the Chapter on fundamental rights as\u00a0embodying a distinct protection. This principle had already been over turned by an 11 member bench in\u00a0Rustom Cavasji Cooper v Union of India.(1970)<\/strong><\/a>(Popularly known as the Bank Nationalization Case).<\/p>\n

Hence part of this 9 member bench in this case which can be referred to as the Puttaswamy case was only reiterating that M P Sharma and Kharak Singh \u00a0Judgements had already been over ridden in the Cooper judgement if we had not realized it. Since Cooper Judgement was a 11 member bench, there was no way this 9 member bench could over turn it. Had the CJI wanted it to be over turned, he would not have constituted a 9 member bench at all. Hence it was known from the beginning that M P Sharma and Kharak Singh judgements were out of contention and Cooper was in.<\/p>\n

The\u00a0consequence of the Cooper decision according to the Chandrachud (Part I) part of the judgement is that a law which restricts the personal liberties\u00a0contained in Article 19 (Freedom of Expression) must meet the test of permissible restrictions contemplated by\u00a0Clauses 2 to 6 in relation to the fundamental freedom which is infringed.<\/p>\n

These restrictions are stated as follows:<\/p>\n

Nothing in sub clause (a) of clause ( 1 ) namely that\u00a0\u00a0All citizens shall have the right to freedom of speech and expression;<\/strong><\/em>\u00a0shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions<\/strong> on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence… etc<\/strong><\/p>\n

In this background, we can now concatenated all the end notes in the Six parts of the judgement as follows.<\/p>\n

Part<\/strong><\/a>-I\u00a0\u00a0(Chandrachud, Kehar, Agarwal, Nazeer) :\u00a0<\/a>Conclusions:\u00a0<\/strong><\/p>\n

1 The judgment in M P Sharma holds essentially that in the absence of a provision\u00a0similar to the Fourth Amendment to the US Constitution, the right to privacy cannot\u00a0be read into the provisions of Article 20 (3) of the Indian Constitution. The judgment\u00a0does not specifically adjudicate on whether a right to privacy would arise from any\u00a0of the other provisions of the rights guaranteed by Part III including Article 21 and\u00a0Article 19. The observation that privacy is not a right guaranteed by the Indian\u00a0Constitution is not reflective of the correct position. M P Sharma is overruled to the\u00a0extent to which it indicates to the contrary.<\/p>\n

2 Kharak Singh has correctly held that the content of the expression \u2018life\u2019 under\u00a0Article 21 means not merely the right to a person\u2019s \u201canimal existence\u201d and that the\u00a0expression \u2018personal liberty\u2019 is a guarantee against invasion into the sanctity of a\u00a0person\u2019s home or an intrusion into personal security. Kharak Singh also correctly\u00a0laid down that the dignity of the individual must lend content to the meaning of\u00a0\u2018personal liberty\u2019. The first part of the decision in Kharak Singh which invalidated\u00a0domiciliary visits at night on the ground that they violated ordered liberty is an\u00a0implicit recognition of the right to privacy. The second part of the decision,\u00a0however, which holds that the right to privacy is not a guaranteed right under our\u00a0Constitution, is not reflective of the correct position. Similarly, Kharak Singh\u2019s\u00a0reliance upon the decision of the majority in Gopalan is not reflective of the correct\u00a0position in view of the decisions in Cooper and in Maneka. Kharak Singh to the\u00a0extent that it holds that the right to privacy is not protected under the Indian\u00a0Constitution is overruled.<\/p>\n

3<\/p>\n

(A) Life and personal liberty are inalienable rights. These are rights which are\u00a0inseparable from a dignified human existence. The dignity of the individual,\u00a0equality between human beings and the quest for liberty are the foundational pillars\u00a0of the Indian Constitution;<\/p>\n

(B) Life and personal liberty are not creations of the Constitution. These rights are\u00a0recognised by the Constitution as inhering in each individual as an intrinsic and\u00a0inseparable part of the human element which dwells within;<\/p>\n

(C) Privacy is a constitutionally protected right which emerges primarily from the\u00a0guarantee of life and personal liberty in Article 21 of the Constitution. Elements of\u00a0privacy also arise in varying contexts from the other facets of freedom and dignity\u00a0recognised and guaranteed by the fundamental rights contained in Part III;<\/p>\n

(D) Judicial recognition of the existence of a constitutional right of privacy is not an\u00a0exercise in the nature of amending the Constitution nor is the Court embarking on\u00a0a constitutional function of that nature which is entrusted to Parliament;<\/p>\n

(E) Privacy is the constitutional core of human dignity. Privacy has both a normative\u00a0and descriptive function. At a normative level privacy sub-serves those eternal\u00a0values upon which the guarantees of life, liberty and freedom are founded. At a\u00a0descriptive level, privacy postulates a bundle of entitlements and interests which\u00a0lie at the foundation of ordered liberty;<\/p>\n

(F) Privacy includes at its core the preservation of personal intimacies, the sanctity of\u00a0family life, marriage, procreation, the home and sexual orientation. Privacy also\u00a0connotes a right to be left alone. Privacy safeguards individual autonomy and\u00a0recognises the ability of the individual to control vital aspects of his or her life.\u00a0Personal choices governing a way of life are intrinsic to privacy. Privacy protects\u00a0heterogeneity and recognises the plurality and diversity of our culture. While the\u00a0legitimate expectation of privacy may vary from the intimate zone to the private zone and from the private to the public arenas, it is important to underscore that\u00a0privacy is not lost or surrendered merely because the individual is in a public place.\u00a0Privacy attaches to the person since it is an essential facet of the dignity of the\u00a0human being;<\/p>\n

(G) This Court has not embarked upon an exhaustive enumeration or a catalogue of\u00a0entitlements or interests comprised in the right to privacy. The Constitution must\u00a0evolve with the felt necessities of time to meet the challenges thrown up in a\u00a0democratic order governed by the rule of law. The meaning of the Constitution\u00a0cannot be frozen on the perspectives present when it was adopted. Technological\u00a0change has given rise to concerns which were not present seven decades ago\u00a0and the rapid growth of technology may render obsolescent many notions of the\u00a0present. Hence the interpretation of the Constitution must be resilient and flexible\u00a0to allow future generations to adapt its content bearing in mind its basic or\u00a0essential features;<\/p>\n

(H) Like other rights which form part of the fundamental freedoms protected by Part\u00a0III, including the right to life and personal liberty under Article 21, privacy is not an\u00a0absolute right. A law which encroaches upon privacy will have to withstand the\u00a0touchstone of permissible restrictions on fundamental rights. In the context of\u00a0Article 21 an invasion of privacy must be justified on the basis of a law which\u00a0stipulates a procedure which is fair, just and reasonable. The law must also be\u00a0valid with reference to the encroachment on life and personal liberty under Article\u00a021. An invasion of life or personal liberty must meet the three-fold requirement of\u00a0(i) legality, which postulates the existence of law; (ii) need, defined in terms of a\u00a0legitimate state aim; and (iii) proportionality which ensures a rational nexus\u00a0between the objects and the means adopted to achieve them; and\u00a0(I) Privacy has both positive and negative content. The negative content restrains the\u00a0state from committing an intrusion upon the life and personal liberty of a citizen. Its\u00a0positive content imposes an obligation on the state to take all necessary measures\u00a0to protect the privacy of the individual.<\/p>\n

4 Decisions rendered by this Court subsequent to Kharak Singh, upholding the right\u00a0to privacy would be read subject to the above principles.<\/p>\n

5 Informational privacy is a facet of the right to privacy. The dangers to privacy in\u00a0an age of information can originate not only from the state but from non-state actors\u00a0as well. We commend to the Union Government the need to examine and put into\u00a0place a robust regime for data protection. The creation of such a regime requires\u00a0a careful and sensitive balance between individual interests and legitimate\u00a0concerns of the state. The legitimate aims of the state would include for instance\u00a0protecting national security, preventing and investigating crime, encouraging\u00a0innovation and the spread of knowledge, and preventing the dissipation of social\u00a0welfare benefits. These are matters of policy to be considered by the Union\u00a0government while designing a carefully structured regime for the protection of the\u00a0data. Since the Union government has informed the Court that it has constituted a\u00a0Committee chaired by Hon\u2019ble Shri Justice B N Srikrishna, former Judge of this\u00a0Court, for that purpose, the matter shall be dealt with appropriately by the Union\u00a0government having due regard to what has been set out in this judgment.<\/p>\n

Part -II\u00a0(Chelmeshwar)\u00a0<\/strong><\/a><\/p>\n

Justice Chelmeshwar has not recorded any separate para as “Conclusions”. Hence his conclusion is contained in the final order only. He has generally agreed with the conclusions arrived at Part I.<\/p>\n

Part- III\u00a0(Bobde):<\/strong><\/a><\/p>\n

a. The ineluctable conclusion must be that an inalienable\u00a0constitutional right to privacy inheres in Part III of the\u00a0Constitution. M.P. Sharma and the majority opinion in Kharak\u00a0Singh must stand overruled to the extent that they indicate to\u00a0the contrary.<\/p>\n

b. The right to privacy is inextricably bound up with all\u00a0exercises of human liberty \u2013 both as it is specifically enumerated\u00a0across Part III, and as it is guaranteed in the residue under\u00a0Article 21. It is distributed across the various articles in Part III\u00a0and, mutatis mutandis, takes the form of whichever of their\u00a0enjoyment its violation curtails<\/p>\n

c. Any interference with privacy by an entity covered by\u00a0Article 12\u2019s description of the \u2018state\u2019 must satisfy the tests\u00a0applicable to whichever one or more of the Part III freedoms the\u00a0interference affects.<\/p>\n

Part -IV\u00a0(Nariman)<\/strong><\/a><\/p>\n

This reference is answered by stating that the inalienable fundamental right to privacy resides in Article 21 and other fundamental freedoms contained in Part III of the Constitution of \u00a0India.<\/p>\n

M.P. Sharma (supra) and the majority in Kharak Singh (supra), to the extent that they \u00a0indicate to the contrary stand overruled.<\/p>\n

The later judgments of this Court recognizing privacy as \u00a0a fundamental right do not need to be revisited.<\/p>\n

These cases are, therefore, sent back for \u00a0adjudication on merits to the original Bench of 3 honourable Judges of this Court in light of the \u00a0judgment just delivered by us.<\/p>\n

Part-V\u00a0(Sapre)<\/strong><\/a><\/p>\n

Justice Sapre also has not captioned any paragraph as a “Conclusion” but has identified two specific points of reference and went ahead to give his views there on.<\/p>\n

They are<\/p>\n

(1) whether the law laid down in\u00a0the case of M.P.Sharma and others vs. Satish\u00a0Chandra, District Magistrate Delhi & Ors., AIR 1954\u00a0SC 300 and Kharak Singh vs. State of Uttar Pradesh\u00a0& Ors. AIR 1963 SC 1295 insofar as it relates to the\u00a0“right to privacy of an individual\u201d is correct and<\/p>\n

(2) whether “right to privacy” is a fundamental\u00a0right under Part III of the Constitution of India?<\/p>\n

His views are<\/p>\n

1)\u00a0I entirely agree with their reasoning and the\u00a0conclusion on question No. 1 (given by others)<\/p>\n

2) ..my answer to\u00a0question No. 2 is that \u201cright to privacy\u201d is a part of\u00a0fundamental right of a citizen guaranteed under Part\u00a0III of the Constitution. However, it is not an absolute\u00a0right but is subject to certain reasonable restrictions,\u00a0which the State is entitled to impose on the basis of\u00a0social, moral and compelling public interest in\u00a0accordance with law….I also hold that the \u201cright to privacy\u201d\u00a0has multiple facets, and, therefore, the same has to go\u00a0through a process of case-to-case development as and\u00a0when any citizen raises his grievance complaining of\u00a0infringement of his alleged right in accordance with\u00a0law.<\/p>\n

Part -VI\u00a0(Kaul)<\/strong><\/a><\/p>\n

Justice Kaul has also not specifically noted any “Conclusion” but has made a few important observations.<\/p>\n

I am in agreement with the view of Dr. D.Y.\u00a0Chandrachud, J., who in paragraphs 123 & 124 of his judgment, states\u00a0that the right of privacy cannot be denied, even if there is a miniscule\u00a0fraction of the population which is affected.<\/p>\n

Let the right of privacy, an inherent right, be unequivocally a\u00a0fundamental right embedded in part-III of the Constitution of India, but\u00a0subject to the restrictions specified, relatable to that part. This is the call\u00a0of today. The old order changeth yielding place to new.<\/p>\n

If we observe all these concluding remarks together, the majority opinion which is “Unanimous” is that “Privacy is a Fundamental Right subject to Reasonable Restrictions”.<\/p>\n

There are many other observations buried inside the pages of this judgement which could be quoted in other litigations in due course as ” views of a Judge in the famous Puttaswamy case”. These will however be “Observations not forming either individual judgements or the Final Order” and will be seen as the third level of what this judgement implies.<\/p>\n

Observations which are not part of the final order or individual conclusions may have a limited practical judicial value since they have been deliberately omitted in the conclusions or the final order.<\/p>\n

Other observations such as the one on LGBT rights etc are not majority opinions and not also part of the order. Aadhaar has not been specifically commented upon since another bench is anyway looking into it.<\/p>\n

Now, the next question that we need to discuss is what will be the take home for the stake holders on account of this Puttaswamy judgement?<\/p>\n

Judges are happy about the excellent media coverage that they have got because of this judgement. They have got as much TRP as the media channels. Constitutional experts who practice in High Courts\/Supreme Courts are happy that there could be a number of cases they can file directly at the High Courts and Supreme Courts and enjoy locking up our judicial system in a plethora of litigations. Academicians will be happy with the bundle of case laws that can be discussed and re-discussed in class rooms and conferences. It is a Win-Win-Win situation for all.<\/p>\n

But at the end of this short term celebration, we need to examine the impact of this judgement on the real stake holders of “Privacy” which we shall explore in subsequent article.<\/p>\n

There are three different stake holders to this “Privacy Issue” namely<\/p>\n

a) The Citizen of the Country who should feel that he has a “Right to Privacy” in whatever manner the Constitution understands it.<\/p>\n

b)\u00a0\u00a0The Government which makes laws and\u00a0uses services such as Aadhaar which may have an indirect association with the principle of “Privacy”<\/p>\n

c) The business entities which use services that have a direct and indirect association with the principle of “Privacy”.<\/p>\n

Let’s continue our debate…after a break…because we may have some thing more in the interim to discuss on Infosys Saga….<\/p>\n

Naavi<\/p>\n

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Reference:<\/strong><\/p>\n\n\n\n\n
Part<\/a>-I\u00a0\u00a0(Chandrachud, Kehar, Agarwal, Nazeer)<\/a><\/strong><\/td>\nPart -II\u00a0(Chelmeshwar)\u00a0<\/strong><\/a><\/td>\nPart- III\u00a0(Bobde):<\/strong><\/a><\/td>\nPart -IV\u00a0(Nariman)<\/strong><\/a><\/td>\n<\/tr>\n
Part-V\u00a0(Sapre)<\/strong><\/a><\/td>\nPart -VI\u00a0(Kaul)<\/strong><\/a><\/td>\nPart -VII\u00a0(Order)<\/strong><\/a><\/td>\nFull Judgement<\/strong><\/a><\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n
\"Print<\/a><\/div>\n<\/div>\n<\/div>\n<\/div>\n
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In continuation of our previous article on the “Hashing of the Privacy Judgement” we can now look at the six pieces of individual judgement and the end notes in each of these judgement s that can be considered as “Judgmental … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_editorskit_title_hidden":false,"_editorskit_reading_time":0,"_editorskit_is_block_options_detached":false,"_editorskit_block_options_position":"{}","_uag_custom_page_level_css":"","footnotes":""},"categories":[7],"tags":[],"class_list":["post-6532","post","type-post","status-publish","format-standard","hentry","category-cyber-law"],"uagb_featured_image_src":{"full":false,"thumbnail":false,"medium":false,"medium_large":false,"large":false,"1536x1536":false,"2048x2048":false,"post-thumbnail":false},"uagb_author_info":{"display_name":"Vijayashankar Na","author_link":"https:\/\/www.naavi.org\/wp\/author\/naavi\/"},"uagb_comment_info":0,"uagb_excerpt":"In continuation of our previous article on the “Hashing of the Privacy Judgement” we can now look at the six pieces of individual judgement and the end notes in each of these judgement s that can be considered as “Judgmental … Continue reading →","_links":{"self":[{"href":"https:\/\/www.naavi.org\/wp\/wp-json\/wp\/v2\/posts\/6532","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.naavi.org\/wp\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.naavi.org\/wp\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.naavi.org\/wp\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.naavi.org\/wp\/wp-json\/wp\/v2\/comments?post=6532"}],"version-history":[{"count":10,"href":"https:\/\/www.naavi.org\/wp\/wp-json\/wp\/v2\/posts\/6532\/revisions"}],"predecessor-version":[{"id":15394,"href":"https:\/\/www.naavi.org\/wp\/wp-json\/wp\/v2\/posts\/6532\/revisions\/15394"}],"wp:attachment":[{"href":"https:\/\/www.naavi.org\/wp\/wp-json\/wp\/v2\/media?parent=6532"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.naavi.org\/wp\/wp-json\/wp\/v2\/categories?post=6532"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.naavi.org\/wp\/wp-json\/wp\/v2\/tags?post=6532"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}