K.S. Puttaswamy Judgment After-effects: Moving Towards Transformative Constitutionalism

The Supreme Court is the custodian and interpreter of the Constitution. The Court has never been reluctant in transforming the Constitution for better to meet the societal needs. Article 21 is one of the most widely interpreted articles of the Constitution. The judgment of Maneka Gandhi marked the beginning of a new era with liberalized approach to the interpretation of Article 21 which later became the basis of establishing many other rights, including the right to privacy. Many years later, the landmark K.S. Puttaswamy judgment was passed which established that the “right to privacy” is protected under Part III of the Constitution of India, marking the beginning of another era. Since then, it has become a significant precedent in many cases, which not only was reiterated, but also the scope and ambit of right to privacy in India has been significantly widened in subsequent judgments. This paper analyses the scope of Article 21 and judgments which elaborated its scope. Further the paper traces the journey of right to privacy which was possible through judicial interpretation of Article 21. Since K.S. Puttaswamy judgment has become pivotal in this journey therefore the entire scheme revolves around this juncture. Firstly, pre-Puttaswamy era judgment has been discussed followed by an analysis of the K.S. Puttaswamy judgment then the effect of this judgment in subsequent judgments have been traced with the help of relevant case laws.


Introduction
T he right to privacy is an inherent right of every individual.It is a positive right to secure and keep one's life, personal and out of public domain as well as a negative right to safeguard one's personal space from interference or intrusion.The Indian judiciary has played a phenomenal role in guaranteeing right to privacy as a fundamental right under the Indian Constitution.Article 21 has been one of the most widely interpreted articles of the Constitution, due to its liberal interpretation by the Courts, which also formed the basis of establishment of right to privacy.Taking into account the circumstances and evolving rights of individual of a modern day society, the changing social fabric of a new age democratic nation, it was imperative on the Judiciary to liberally interpret the Constitution to serve needs of every citizen rising above any discrimination.In Justice K. S. Puttaswamy (Retd.) and Anr.v. Union of Indian and Ors. 1 (herein after referred as "K.S. Puttaswamy judgment") the Court recognized the right to privacy, which was just the beginning towards exploring its various dimensions.It opened the gateway towards acknowledgment of various rights for the full realization of right to privacy in India.

The Concept of Privacy: An Overview
Privacy cannot be defined in single definition.There cannot be a compartmentalization of this concept.It is very subjective concept.It is a personal sphere which varies.However, basic deep down narrative can be space where an intrusion is not expected and uncalled for.One of the earliest attempts to define this concept was made by Louis Brandeis and Samuel D. Warren in their ground-breaking article "The Right to Privacy". 2 They defined privacy as the "right to be let alone".The definition clearly gives some direction of this unruly concept.It entails that there is a space which a person has of which he or she has "exclusive access" 3 to and there is no invasion or intrusion by any third person.Such an invasion would result in infringement of privacy.
The concept of privacy is multidimensional & it is linked with various values concomitant for true existence of human beings which includes concept of freedom, liberty, dignity, personal autonomy, self-determination and others.These values including, the right to privacy is necessary for the full development of human personality and realization of its full potential.Therefore, an unwanted intrusion into these core values would cause an infringement into the right to privacy of an individual.However, it would be determined on case to case basis.

The Right to Life and Personal Liberty: The Stepping Stone
The right to life and personal liberty enshrined under Article 21 4 is one of the most celebrated 2 Samuel D. Warren, Louis D. Brandeis, "The Right to Privacy", 4 Harvard Law Review 193-220 (1890).

3
E. Van den Haag, On Privacy, 149 (Nomos XIII,  1971), cited in H.J. McCloskey, "Privacy and the Right to Privacy" 55 Philosophy 24-25 (1980).4 The Constitution of India, art.21: "Protection of life and provisions of the Indian Constitution.Even though it was narrowly interpreted 5 in the beginning, but the pro-active Indian judiciary spread its wings to a different level.All the credit of this new horizon goes to the landmark judgment of Supreme Court in Maneka Gandhi v. Union of India. 6This judgment enabled the procedure, which is depriving a person of his life and liberty, to be just, fair and reasonable.
There cannot be a whimsical procedure for depriving from this right.These safeguards are in consonance with the principles of Natural Justice.This journey witnessed the transformation of State role from just maintaining the law and order to becoming a welfare State.In this transformation, the Indian judiciary played a potent role.The literal wordings of Article 21 of the Constitution remained the same during its transformative period, but the judiciary gave the much needed spirit to the letters of the law and right to life established to include all those components of life which is necessary to lead it in an accomplished way.The Maneka Gandhi judgment opened a treasure box to the new set of rights which includes the right to free legal aid, 7 right against custodial violence, 8 right to speedy trial, 9 right to shelter, 10 right to healthy environment 11 and other rights.However, when we live in a society where every member of the society has equal rights therefore these rights cannot be exercised in an unreasonable manner and therefore, no fundamental right can be said to be absolute.

Development of Right to Privacy under Indian Constitution
The development of right to privacy under the Indian Constitution can be seen in three phases i.e. scenario before the judgment of K.S. Puttaswamy, then the personal liberty-No person shall be deprived of his life or personal liberty except according to procedure established by law.decision made in this landmark judgment and the change in scenario post this judgment.This phase is being discussed in the subsequent section.

Pre-Puttaswamy Era
Just like the constitutional development of Article 21, the journey of right to privacy has been remarkable.
In the beginning the Courts were reluctant in accepting the right to privacy as a guaranteed right in the Constitution 12 and also expressed an absence of protection of such right. 13 as propounded in various judgments.The Court concluded that the observation in M.P. Sharma 20 judgment that the right to privacy is not guaranteed by the Indian Constitution does not reflect correct position and therefore, overruled it to the extent it depicts a contrary stand on this point.In Kharak Singh 21 judgment, even though the Court guaranteed protection against domiciliary visits at night on ground of violation of ordered liberty, but the part which denies the existence of privacy as guaranteed right under Constitution does not reflect correct position and therefore overruled to that extent.The Court observed that Privacy is a "natural and inalienable right" 22 which is necessary for exercising control over his/her personality.Privacy is an essential facet of human dignity and it safeguards individual autonomy.For the fulfillment of various liberties and freedoms imbibed in Constitution, living a life with dignity has been recognized by the privacy.The Court also emphasized that it is part of "India's commitment to a global human right regime" to recognize right to privacy as a constitutional value.The Court 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." 23owever, the Court clarified that like other fundamental freedoms protected under Part III, the right to privacy is also not an absolute right.The Court held that the law which invades the right to privacy must be justified on the basis of just, fair and reasonable procedure.Moreover, for encroaching on the life and personal liberty, law must be valid and meets these three requirements: ■ "i.Legality, which postulates the existence of law; ■ ii.Need, defined  The Court refrained itself from exhaustively enumerating all the interests which is comprised in privacy and observed that the Constitution must evolve to meet various challenges in the changing times and remarked in following manner: "The Constitution must evolve with the felt necessities of time to meet the challenges thrown up in a democratic order governed by the rule of law.The meaning of the Constitution cannot be frozen on the perspectives present when it was adopted… Hence the interpretation of the Constitution must be resilient and flexible to allow future generations to adapt its content bearing in mind its basic or essential features." 25

LGBT Rights and Privacy
Section 377 of the Indian Penal Code, 1860 (IPC) has been the cause of major debate in this situation which criminalizes "sexual acts between adults in private". 26Section 377 was challenged by the Naz Foundation before the Delhi High Court. 27The Delhi High Court acknowledged the fact that all Human Beings be of any "gender identity" and "sexual orientations" 28 are entitled to enjoyment of all human rights.The Court declared that much part of Section 377 which criminalizes sexual acts between consenting adults in private as unconstitutional and violative of Article 14, 15 and 21.But the Supreme Court in Suresh Kumar Kaushal and Anr. v. Naz Foundation and Ors. 29 overturned the judgment of Naz Foundation and upheld the constitutional validity of the impugned section and left on the Parliament to decide the matter.The Court denied declaring Section 377 as unconstitutional because LGBT community form only "miniscule fraction of the country's population." 30 Soon after the decision of K.S. Puttaswamy, the judgment of Navtej Singh Johar and Ors.v. Union of India and Ors. 32was passed.In this case the Supreme Court held that Section 377 of IPC criminalizing "carnal intercourse against the order of nature" 33 as unconstitutional, in so far as it criminalizes homosexual sex and transgender sex between consenting adults.The Court reiterated the stand taken in the K.S. Puttaswamy judgment and opined that sexual orientation of a person is an "attribute of privacy" 34 and discrimination on the basis of sexual orientation is against the "dignity and self-worth of the individual". 35It is the demand of equality that sexual orientation of an individual must be protected on equal platform.The right to privacy and protection of sexual orientations lies at the "core of fundamental rights guaranteed by the Article 14, 15 and 21". 36Only on the basis of mere fact the LGBT persons constitute "miniscule fraction" of the population of our country, it cannot be basis to deprive them of their Fundamental Rights guaranteed under Part III of the Indian Constitution.

Euthanasia and Privacy
In P. Rathinam v. Union of India and ano., 37  dealt with issue of euthanasia and categorized it as active euthanasia, which includes certain positive act to cause intentional death of a person by direct intervention of some lethal substance and passive euthanasia, would mean the withdrawal of life supporting measures or withholding medical treatment for continuance of life.Active euthanasia is illegal whereas passive euthanasia is legal with certain safeguards.In this case the Court enlisted certain guidelines and procedures to be followed when an application for passive euthanasia is filed.However, the Court dismissed the present petition.
After the Puttaswamy judgment, a petition was brought by a registered Society (Common Cause) with regard to the present issue.In Common Cause (A Regt.Society) v. Union of India and Ors., 41 the Court held that an individual has the "right to die with dignity as a part of his Right to life and personal liberty under Article 21" 42 and upheld the legality of passive euthanasia and also laid down certain propositions with regard to the procedures for the same.The Court reaffirmed that in K.S. Puttaswamy judgment, the Constitutional Bench recognized the "dignity of existence", 43 and "liberty and autonomy" 44 are essential component of life with dignity.The Court observed that: "Continuing treatment against the wishes of a patient is not only a violation of the principle of informed consent, but also of bodily privacy and bodily integrity that have been recognized as a facet of privacy by this Court." 45he Court further held patients who are incompetent to take an informed decision, such decisions to be taken by medical experts and the "best interest principle" shall be applied in such cases.Moreover, an adult human being who has the mental capacity to take informed decision, has the right to refuse medical treatment which 39 Gian Kaur v.

Interception Orders and Privacy
In Vinit Kumar v. Central Bureau of Investigation and Ors., 46 the petitioner challenged the interception orders of telephone calls by the respondent on the ground of it being ultra vires of Section 5(2) of the Indian Telegraph Act, 1885 and violative of fundamental rights guaranteed under Part III of the Indian Constitution.The petitioner also contended that the illegal intercepted telephonic recording which is contained in the charge-sheet and all materials which was collected on the basis of such interception shall be disregarded.The Bombay High Court held that for issuance of an interception order under Section 5(2) of the Indian Telegraph Act, 1885 there is requirement of occurrence of public emergency or such order can be issued in the public safety interest.In this case, the contention of 'public safety' was taken.In People's Union for Civil Liberties v. Union of India & Ors., 47 it was held that "public safety" would mean "the state or condition of freedom from danger or risk for the people at large". 48When these two conditions are absent, then resorting to telephone tapping is impermissible.Moreover both these situations are not secretive in nature.The interception order fails to satisfy the test of "principles of proportionality and legitimacy" as laid down in K.S. Puttaswamy.The Court quashed and set aside the interception order and also directed the destruction of copies of intercepted recordings and messages.
However, soon the Court started accepting the presence of this right in Article 21 and freedoms guaranteed under Article 19.14The right to privacy began to establish its place in the Indian Constitution by the liberal interpretation of Supreme Court and it was observed that "It is a right to be let alone.A citizen has a right to safeguard the privacy of his home, his family, marriage, procreation, motherhood, child-bearing and education among other matters…" 15 In People's Union of Civil Liberties v. Union of India, 16 the Supreme Court considered telephone tapping as invasion of privacy.In State of Maharashtra v. Madhukar Narayan Mardikar, 17 the right to privacy of prostitute was given protection.However, like any other Fundamental Right, the right to privacy is also not absolute.On case to case basis, the Court started putting some restrictions to this Right for the "prevention of crime, disorder or protection of health or morals or protection of rights and freedoms of others."18TheK.S. Puttaswamy Judgment In Justice K. S. Puttaswamy (Retd.) and Anr.v. Union of India and Ors., 19 the constitutional validity of the Aadhaar Card Scheme of the Union Government was challenged on the grounds of violation of right to privacy.The Court elaborately discussed the constitutional positions of right to privacy in India 12 Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295.13 M.P. Sharma & Ors.v. Satish Chandra and Ors., AIR 1954 SC 300.14 Malak Singh v. State of Punjab and Haryana, (1981) 1 SCC 420.15 R. Rajagopal v. State of Tamil Nadu, AIR 1995 SC 264.16 AIR 1997 SC 568.17 (1991) 1 SCC 57.18 Mr. X v. Hospital Z, AIR 1999 SC 495.19 AIR 2017 SC 4161.
In K.S. Puttaswamy judgment, the Court disagreed with the manner in which the issue of privacy was dealt with in Suresh Kumar Kaushal 31 judgment.The Court observed that community being a 'miniscule fraction' cannot be a constitutional basis for denying privacy claims under Article 21 of the Constitution.
the Court held that Section 309 (attempt to commit suicide) of the IPC as violative of Article 21 of the Constitution.Later, P. Rathinam judgment was overruled in Gian Kaur v. State of Punjab, 38 wherein the Court declared Section 309 as well as Section 306 (abetment of suicide) of the IPC as constitutional.The Court held that "'right to live with human dignity' cannot be construed to include within its ambit the right to terminate natural life, at least before the commencement of natural process of certain death." 39Later, the Court in Aruna Ramchandra Shanbaug v. Union of India 40 State of Punjab, 1996 AIR SC 946.
42 Common Cause (A Regt.Society) v. Union of India and Ors., AIR 2018 SC 1665.