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Justice K.S. Puttaswamy (Ret'd) and Anr v. Union of India and Ors

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Justice K.S. Puttaswamy (Ret'd) and Anr v. Union of India and Ors, Writ Petition (Civil) No. 494 of 2012. Athttp://supremecourtofindia.nic.in/supremecourt/2012/35071/35071_2012_Judgement_24-Aug-2017.pdf. Supreme Court of India, August 24, 2017.

Published online by Cambridge University Press:  13 February 2018

Menaka Guruswamy
Menaka Guruswamy*
Affiliation:
Columbia Law School
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Extract

On August 24, 2017, the Supreme Court of India issued a rare, unanimous nine-judge decision holding that the right to privacy is protected by the Constitution of India. The case is all the more noteworthy because the Court reversed its prior decisions holding that the right to privacy was not protected by the country's Constitution. It arose out of the government's creation of a national database of biometric and demographic information for every Indian. Rejecting the government's arguments, the Court found that the right to privacy applies across the gamut of “fundamental” rights including equality, dignity (Article 14), speech, expression (Article 19), life, and liberty (Article 21). The six separate and concurring judgments in Justice K.S. Puttaswamy (Ret'd) and Anr v. Union of India and Ors are trailblazing for their commitment to privacy as a fundamental freedom and for the judges’ use of foreign law across jurisdictions and spanning centuries.

Keywords

Supreme Court of Indiaright to privacycomparative and international law in constitutional interpretationprivacy as an aspect of dignity, equality, speech, and other rightsconstitutional interpretation in light of technological change
Type
International Decisions: Edited by Ingrid Wuerth
Information
American Journal of International Law , Volume 111 , Issue 4 , October 2017 , pp. 994 - 1000
Copyright
Copyright © 2018 by The American Society of International Law 

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References

1 K. S. Puttaswamy v. Union of India, Writ Petition (Civil) No. 494 of 2012 (Sup. Ct. India Aug. 24, 2017).

2 M.P. Sharma v. Satish Chandra, District Magistrate, Delhi, (1954) SCR 1077 (India); Kharak Singh v. State of UP, (1964) 1 SCR 332 (India).

3 See Menaka Guruswamy, India's Supreme Court Expands Freedom, N.Y. Times (Sept. 10, 2017).

4 The Aadhar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, Sec. 47(1) (2016).

5 Id.

6 116 U.S. 616 (1886)

7 In a similar vein, the Puttaswamy court looks to other jurisdictions, like South Africa, Canada, the European Court of Human Rights, and the Inter-American Court of Human Rights, and traces the development and treatment of privacy rights and protections—and discusses their privacy jurisprudence (para. 134).

8 573 U.S. __ (2014).

9 576 U.S. __ (2015).

10 Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1 (India).

11 Independent Thought v. Union of India, Order Dated August 9, 2017 (Sup. Ct. India).

12 Baragur Ramachandrappa v. State of Karnataka, (2007) 5 SCC 11 (India). See also Ranjit Udeshi v. State of Maharashtra, (1965) SC 881 (India).

13 K.A. Abbas v. Union of India, (1971) SC 481; (1971) 2 SCR 446.

14 Prem Shankar Shukla v. Delhi Administration, (1980) 3 SCC 526 (India).

15 Francis Coralie Mullin v. Union Territory of Delhi, (1981) 1 SCC 608 (India).

16 Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161 (India).

17 Selvi v. State of Karnataka, (2010) 7 SCC 263 (India).

18 Universal Declaration of Human Rights, Art. 12, GA Res. 217A (III), UN GAOR, 3d Sess., Resolutions, at 71, UN Doc. A/810 (1948).

19 International Convention on Civil and Political Rights, Art. 17, Dec. 16, 1966, 999 UNTS 171 (“1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such interference.”).

20 (1980) 2 SCC 684 (India).

21 (1997) 6 SCC 241 (India).

22 (2014) 1 SCC 1 (India).

23 Navtej Singh Johar and Ors v. Union of India, Ministry of Law and Justice (Sup. Ct. India 2016).

24 Shafin Jahan v. State of Kerala (Sup. Ct. India 2017) (case being heard at present).

25 Akhil Bharat Krishi Goseva Sangh v. State of Maharashtra (Sup. Ct. India 2016).