An Analysis of Puttaswamy: The Supreme Court's Privacy Verdict

Abstract

On 24th August 2017, a nine-judge bench of the Supreme Court in Justice K.S. Puttaswamy vs Union of India passed a historic judgment affirming the constitutional right to privacy. It declared privacy to be an integral component of Part III of the Constitution of India, which lays down our fundamental rights, ranging from rights relating to equality (Articles 14 to 18); freedom of speech and expression (Article 19(1)(a)); freedom of movement (Article 19(1)(d)); protection of life and personal liberty (Article 21) and others. These fundamental rights cannot be given or taken away by law, and all laws and executive actions must abide by them.

The Supreme Court has, however, clarified that like most other fundamental rights, the right to privacy is not an "absolute right". Subject to the satisfaction of certain tests and benchmarks, a person's privacy interests can be overridden by competing state and individual interests. This post discusses the tests that have been laid down by the Supreme Court in the Puttaswamy case, against which privacy infringements will be evaluated going forward. Based on this analysis, the post argues that a majority of the judges in this decision have agreed that the European standard of proportionality shall be applied to test privacy infringements in the future. However, the rigor and technicality with which this doctrine is applied will depend on the nature of the competing interests in question and will evolve on a case by case basis. At the very least, any impugned action will continue to be tested on the "just, fair and reasonable" standard evolved under Article 21 of the Constitution. However, before we delve into the standards laid down by the Court, it is important to understand why the Supreme Court was called upon to decide if we have a fundamental right to privacy and how to read the decision it finally delivered.