Puttaswamy v. Union of India | |
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Court | Supreme Court of India |
Full case name | Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors. |
Decided | August 24, 2017 |
Citation | Writ Petition (Civil) No 494 of 2012; (2017) 10 SCC 1; AIR 2017 SC 4161 |
Case history | |
Related actions |
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Court membership | |
Judges sitting | J.S. Khehar, J. Chelameswar, S.A. Bobde, R.K. Agarwal, Rohinton F. Nariman, A.M. Sapre, Dr. D.Y. Chandrachud, Sanjay Kishan Kaul and S.A. Nazeer |
Case opinions | |
The right to privacy is protected under Articles 14, 19 and 21 of the Constitution. | |
Concurrence | All |
Dissent | None |
Laws applied | |
This case overturned a previous ruling | |
MP Sharma v Satish Chandra (1954) Kharak Singh v State of Uttar Pradesh and Others (1962) Contents
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Justice K.S. Puttaswamy (Retd.) &Anr. vs. Union of India &Ors. (2017), commonly known as the Right to Privacy verdict, was a landmark decision of the Supreme Court of India, which held that the right to privacy is protected as a fundamental right under Articles 14, 19 and 21 of the Constitution of India. [1] The original petitioner Justice K.S. Puttaswamy was former judge of the Karnataka High Court
A nine-judge bench of J. S. Khehar, J. Chelameswar, S. A. Bobde, R. K. Agrawal, R. F. Nariman, A. M. Sapre, D. Y. Chandrachud, S. K. Kaul, and S. A. Nazeer unanimously held that "the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution." [2] It explicitly overrules previous judgements of the Supreme Court in Kharak Singh vs. State of UP and M.P. Sharma vs. Union of India, which held that there is no fundamental right to privacy under the Indian Constitution.
This judgement settled this position of law and clarified that the Right to Privacy could be infringed upon only when there was a compelling state interest for doing so. This position was the same as with the other fundamental rights. [3]
After Facebook acquired WhatsApp in 2014, WhatsApp's new data sharing policy was challenged in the Supreme Court. The Supreme Court had to decide if the right to privacy could be enforced against private entities. [4]
A three-judge bench first heard the legal challenge to the AADHAR law. The Union Government of India had taken the legal position that the Right to Privacy was a common law right protected by statute, and the government held that earlier judgments of the court failed to recognize the Right to Privacy as a Fundamental Right. The three-judge bench hearing the matter referred the question of Right to Privacy to a nine-judge constitutional Supreme Court bench. [3]
The nine-judge bench was used because, when the case was on the list, Supreme Court Chief Justice Khehar was informed that in the past there was a verdict from an eight-judge bench as well as a six-judge bench, both holding the view that the Right to Privacy is not a fundamental right. CJI Khehar then decided to constitute a nine-judge bench to rule on the question of Right to Privacy. [5] This nine-judge bench gave a unanimous decision on the case, recognizing every individual's fundamental right to privacy under the Constitution. [3]
The Attorney General of India K.K. Venugopal had opposed the elevation of privacy as a fundamental right, representing the stance of the Union government of India in the Supreme Court. The previous Attorney General, Mukul Rohatgi, had opposed the right to privacy entirely, but Venugopal, while opposing the right, conceded that privacy could be a "wholly qualified fundamental right."
On 24 August 2017, the Supreme Court of India gave the Right to Privacy verdict. In the case of Justice K.S. Puttaswamy (Retd.) and Anr. vs Union of India and Ors. The Supreme Court held that the Right to Privacy is a fundamental right protected under Article 21 and Part III of the Indian Constitution. The judgment mentioned Section 377 as a "discordant note which directly bears upon the evolution of the constitutional jurisprudence on the right to privacy." In the judgment delivered by the nine-judge bench, Justice Chandrachud (who authored for Justices Khehar, Agarwal, Abdul Nazeer and himself), held that the rationale behind the Suresh Koushal (2013) Judgement is incorrect, and the judges clearly expressed their disagreement with it. Justice Kaul agreed with Justice Chandrachud's view that the right to privacy cannot be denied, even if a minuscule fraction of the affected population exists. He went on to state that the majoritarian concept does not apply to Constitutional rights, and the courts are often called upon to take what may be categorized as a non-majoritarian view, in the check and balance of power envisaged under the Constitution of India. [6]
Sexual orientation is an essential attribute of privacy. Discrimination against an individual based on sexual orientation is deeply offensive to an individual's dignity and self-worth. Equality demands that the sexual orientation of each individual in society must be protected on an even platform. The right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15, and 21 of the Constitution. [6]
Their rights are not "so-called" but are real rights founded on sound constitutional doctrine. They inhere in the right to life. They dwell in privacy and dignity. They constitute the essence of liberty and freedom. Sexual orientation is an essential component of identity. Equal protection demands protecting the identity of every individual without discrimination. [6]
The ADM Jabalpur case was overruled on the doctrinal grounds concerning the rights by the same verdict. At the paragraph 119 of the majority opinion, the court had ruled: [3]
"The judgments rendered by all the four judges constituting the majority in Additional District Magistrate, Jabalpur are seriously flawed. Life and personal liberty are inalienable to human existence. These rights are, as recognized in Kesavananda Bharati, primordial rights. They constitute rights under natural law.
The human element in the life of the individual is integrally founded on the sanctity of life. Dignity is associated with liberty and freedom. No civilised state can contemplate an encroachment upon life and personal liberty without the authority of law.
"Neither life nor liberty are bounties conferred by the State nor does the Constitution create these rights.
"The right to life has existed even before the advent of the Constitution. In recognizing the right, the Constitution does not become the sole repository of the right. It would be preposterous to suggest that a democratic Constitution without a Bill of Rights would leave individuals governed by the State without either the existence of the right to live or the means of enforcement of the right. The right to life is inalienable to each individual, it existed before the Constitution and continued in force under Article of the Constitution.
"Justice Khanna was right in holding that the recognition of the right to life and personal liberty under the Constitution does not denude the existence of that right, apart from it nor can there be a fatuous assumption that in adopting the Constitution the people of India surrendered the most precious aspects of the human persona, namely, life, liberty and freedom to the State on whose mercy these rights would depend. Such a construct is contrary to the basic foundation of the rule of law which imposes restraints upon the powers vested in the modern state when it deals with individual liberties.
"The power of the Court to issue a writ of habeas corpus is a precious and undeniable feature of the rule of law." [3]
A nine-judge bench ruled that the Right to Privacy is a fundamental right for Indian citizens, so no legislation passed by the government can unduly violate it. Specifically, the court adopted the three-pronged test required for any encroachment of Article 21 right: legality, or the existence of a certain law; necessity, in terms of a legitimate state objective; and proportionality, which requires a rational connection between an object and the means required to get that object. [7]
This clarification was crucial to prevent dilution of the right in the future to the whims and fancies of the government in power. [8] The court adopted a liberal interpretation of the fundamental rights, holding that individual liberty must extend to digital spaces and individual autonomy, and privacy must be protected. [9]
This judgment settled that position of law and clarified that the Right to Privacy could be infringed only when there was a compelling state interest for doing so. This position was the same as with the other fundamental rights. [3]
This ruling by the Supreme Court paved the way for the decriminalization of homosexuality in India on 6 September 2018, thus legalizing same-sex sexual intercourse between two consenting adults in private. [10] India is the world's largest democracy and with this ruling has joined the United States, Canada, South Africa, the European Union, and the UK in recognizing this fundamental right. [11]
However, as the curative petition (challenging Section 377) is currently sub-judice, the judges authored that they would leave the constitutional validity to be decided in an appropriate proceeding. Legal experts have suggested that with this judgment, the judges have invalidated the reasoning behind the 2013 Judgement, thus laying the groundwork for Section 377 to be read down and the restoration of the 2009 High Court Judgement, thereby decriminalizing homosexual sex. [12] [13]
The judgement was interpreted as paving the way for the eventual decriminalization of homosexuality in the case of Navtej Singh Johar v. Union of India (2018) and adultery in the case of Joseph Shine v. Union of India (2018).
The Attorney General of India K. K. Venugopal had opposed the elevation of privacy as a fundamental right while explaining the stand of the Union government of India, in the Supreme Court. [5] Later on while delivering the speech in the farewell ceremony of CJI JS Khehar, attorney Venugopal noted, "We have now an extraordinary judgement which has upheld the right to privacy as a major fundamental right which, if we look into the newspapers or TV, has been welcomed by every single person in this country. And that, I think, is one of the greatest things that the Supreme Court of India has done." [5]
The Supreme Court of India is the supreme judicial authority and the highest court of the Republic of India. It is the final court of appeal for all civil and criminal cases in India. It also has the power of judicial review. The Supreme Court, which consists of the Chief Justice of India and a maximum of fellow 33 judges, has extensive powers in the form of original, appellate and advisory jurisdictions.
Section 377 is a British colonial penal code that criminalized all sexual acts "against the order of nature". The law was used to prosecute people engaging in oral and anal sex along with homosexual activity. As per a Supreme Court Judgement since 2018, the Indian Penal Code Section 377 is used to convict non-consensual sexual activities among homosexuals with a minimum of ten years’ imprisonment extended to life imprisonment. It has been used to criminalize third gender people, such as the apwint in Myanmar. In 2018, then British Prime Minister Theresa May acknowledged how the legacies of such British colonial anti-sodomy laws continue to persist today in the form of discrimination, violence, and even death.
The basic structure doctrine is a common law legal doctrine that the constitution of a sovereign state has certain characteristics that cannot be erased by its legislature. The doctrine is recognised in India, Bangladesh, Pakistan, and Uganda. It was developed by the Supreme Court of India in a series of constitutional law cases in the 1960s and 1970s that culminated in Kesavananda Bharati v. State of Kerala, where the doctrine was formally adopted. Bangladesh is perhaps the only legal system in the world which recognizes this doctrine with an expressed, written and rigid constitutional manner through article 7B of its Constitution.
Yeshwant Vishnu Chandrachud was an Indian jurist who served as the 16th Chief Justice of India, serving from 22 February 1978 until 11 July 1985. Born in Pune in the Bombay Presidency, he was first appointed a Justice of the Supreme Court of India on 28 August 1972 and is the longest-serving Chief Justice in India's history at 7 years and 4 months. His nickname was Iron Hands after his well-regarded unwillingness to let anything slip past him.
Hans Raj Khanna was an Indian judge, jurist and advocate who propounded the basic structure doctrine in 1973 and attempted to uphold civil liberties during the time of Emergency in India in a lone dissenting judgement in 1976. He entered the Indian judiciary in 1952 as an Additional District and Sessions Judge and subsequently was elevated as a judge to the Supreme Court of India in 1971 where he continued till his resignation in 1977.
Dhananjaya Yeshwant Chandrachud is an Indian jurist, who is the 50th and current chief justice of India serving since November 2022. He was appointed a judge of the Supreme Court of India in May 2016. He has also previously served as the chief justice of the Allahabad High Court from 2013 to 2016 and as a judge of the Bombay High Court from 2000 to 2013. He is ex-officio Patron-in-Chief of the National Legal Services Authority and the de facto Chancellor of the National Law School of India University.He is also the Designated Visitor of National University of Study and Research in Law
His Holiness Kesavananda Bharati Sripadagalvaru & Ors. v. State of Kerala & Anr., also known as the Kesavananda Bharati judgement, was a landmark decision of the Supreme Court of India that outlined the basic structure doctrine of the Indian Constitution. The case is also known as the Fundamental Rights Case. The court in a 7-6 decision asserted its right to strike down amendments to the constitution that were in violation of the fundamental architecture of the constitution.
Naz Foundation v. Govt. of NCT of Delhi (2009) is a landmark Indian case decided by a two-judge bench of the Delhi High Court, which held that treating consensual homosexual sex between adults as a crime is a violation of fundamental rights protected by India's Constitution. The verdict resulted in the decriminalization of homosexual acts involving consenting adults throughout India. This was later overturned by the Supreme Court of India in Suresh Kumar Koushal vs. Naz Foundation, in which a 2 judge bench reinstated Section 377 of the Indian Penal Code. However, even that was overturned by a 5 judge bench in Navtej Singh Johar v. Union of India in 2018, decriminalizing homosexuality once again.
Rohinton Fali Nariman is a former judge of the Supreme Court of India. Before being elevated as a judge, he practised as a senior counsel at the Supreme Court. He was appointed the Solicitor General of India on 23 July 2011. He also served as a member of the Bar Council of India. He was designated as a Senior Counsel by Chief Justice Manepalli Narayana Rao Venkatachaliah in 1993 at the early age of 37.
G.S. Singhvi is a retired judge of the Supreme Court of India. He retired on 11 December 2013.
Jagdish Singh Khehar is a former senior advocate and a former judge, who served as the 44th Chief Justice of India in 2017. Khehar is the first chief justice from the Sikh community. He has been a judge in Supreme Court of India from 13 September 2011 to 27 August 2017 upon superannuation. He served for a brief period but gave many landmark judgements such as the Triple Talaq and the Right to Privacy verdict. He was succeeded by Justice Dipak Misra.
Dipak Misra is an Indian jurist who served as the 45th Chief Justice of India from 28 August 2017 till 2 October 2018. He is also former Chief Justice of the Patna High Court and Delhi High Court. He is the nephew of Justice Ranganath Misra, who was the 21st Chief Justice from 1990 to 1991.
Sudhansu Jyoti Mukhopadhaya is a former justice of the Supreme Court of India. He was also chair of the National Company Law Appellate Tribunal from 1 June 2016 to 14 March 2020. He previously served as Chief Justice of Gujarat High Court and also served as acting Chief Justice at the Jharkhand High Court and the Madras High Court.
Uday Umesh Lalit is an Indian lawyer and former Supreme Court Judge, who served as the 49th Chief Justice of India. Previously, he has served as a judge of Supreme Court of India. Prior to his elevation as a judge, he practised as a senior counsel at the Supreme Court. Justice Lalit is one of the eleven senior counsels who have been directly elevated to the Supreme Court. He is currently ‘Distinguished Visiting Professor’ at Ashank Desai Centre for Policy Studies, Indian Institute of Technology, Bombay and Distinguished Visiting Professor at West Bengal National University of Juridical Sciences.
National Legal Services Authority v. Union of India(2014) is a landmark judgement of the Supreme Court of India, which declared transgender people the 'third gender', affirmed that the fundamental rights granted under the Constitution of India will be equally applicable to them, and gave them the right to self-identification of their gender as male, female or third gender.
Navtej Singh Johar &Ors. v. Union of India thr. Secretary Ministry of Law and Justice (2018) is a landmark decision of the Supreme Court of India that decriminalised all consensual sex among adults, including homosexual sex.
ADM Jabalpur v. Shivkant Shukla was a landmark judgement of the Supreme Court of India pertaining to the suspension of Articles 21 and 226 of the Indian Constitution in the event of a National Emergency. This controversial judgment of P.N. Bhagwati, decreed during the emergency from 25 June 1975 to 21 March 1977, held that a person's right to not be unlawfully detained can be suspended in the interest of the State. This judgment received a lot of criticism since it reduced the importance of attached to Fundamental Rights under the Indian Constitution. Going against the previous decisions of High Courts, the bench which included P. N. Bhagwati concluded by a majority 4:1 in favour of the then Indira Gandhi government while only Justice Hans Raj Khanna was opposed to it. Bhagwati openly praised Indira Gandhi during the Emergency period, later criticized her when Janata Party-led government was formed and again backed Gandhi when she got re-elected to form government in 1980. Bhagwati was criticized for these change of stands, favouring the ruling government, which were deemed as to have been taken to better his career prospects. Bhagwati later in 2011 agreed with popular opinion that this judgement was short-sighted and apologised.
Sultana Mirza &Anr. v. State Of Uttar Pradesh &Ors. (2020), a decision of the Allahabad High Court, established that the Constitutional Court bears the responsibility of overseeing and upholding both constitutional morality and the rights of citizens, particularly when these rights are endangered solely due to their sexual orientation.
Ujjawal &Anr. versus State of Haryana&Ors.(2021), a case where Punjab and Haryana High Court, refused to provide police protection to a couple facing threat to their lives and personal liberty, citing potential disruption to "social fabric of the society."
The Supreme Court of India under Dhananjaya Y. Chandrachud refers to the tenure of Chandrachud as Chief Justice of India. The Chief Justice of India is often referred to as the master of roster as he allots the benches to cases and in that regard, has administrative jurisdiction. As Chief Justice, by custom, Chandrachud is the ex-officio Patron-in-Chief of National Legal Services Authority and the Chancellor of National Law School of India University. The tenure is Chandrachud as chief justice is ongoing and is expected to last till 11 November 2024. Chandrachud was appointed by the President of India Droupadi Murmu in November 2022. Among many things, Chandrachud's Constitutional bench struck down Electoral Bond scheme. He led the bench in DMRC v. DAMEPL case which was the first significant invocation of curative jurisdiction in contract law.