Privacy, Data Protection and Retention
Lillo-Stenberg v. Norway
Closed Expands Expression
Global Freedom of Expression is an academic initiative and therefore, we encourage you to share and republish excerpts of our content so long as they are not used for commercial purposes and you respect the following policy:
Attribution, copyright, and license information for media used by Global Freedom of Expression is available on our Credits page.
A nine-judge bench of the Supreme Court of India held unanimously that the right to privacy was a constitutionally protected right in India, as well as being incidental to other freedoms guaranteed by the Indian Constitution. The case, brought by retired High Court Judge Puttaswamy, challenged the Government’s proposed scheme for a uniform biometrics-based identity card which would be mandatory for access to government services and benefits. The Government argued that the Constitution did not grant specific protection for the right to privacy. The Court reasoned that privacy is an incident of fundamental freedom or liberty guaranteed under Article 21 which provides that: “No person shall be deprived of his life or personal liberty except according to procedure established by law”. This is a landmark case which is likely to lead to constitutional challenges to a wide range of Indian legislation, for example legislation criminalising same-sex relationships as well as bans on beef and alcohol consumption in many Indian States. Observers also expect the Indian Government to establish a data protection regime to protect the privacy of the individual. Further, the case is likely to be of wider significance as privacy campaigners use it to pursue the constitutional debate over privacy in other countries.
The case was brought by 91-year old retired High Court Judge Puttaswamy against the Union of India (the Government of India) before a nine-judge bench of the Supreme Court which had been set up on reference from the Constitution Bench to determine whether the right to privacy was guaranteed as an independent fundamental right following conflicting decisions from other Supreme Court benches.
The latest case had concerned a challenge to the government’s Aadhaar scheme (a form of uniform biometrics-based identity card) which the government proposed making mandatory for access to government services and benefits. The challenge was made before a three-judge bench of the Supreme Court on the basis that the scheme violated the right to privacy. However, the Attorney General argued on behalf of the Union of India that the Indian Constitution does not grant specific protection for the right to privacy. He based this on observations made in the case of M.P. Sharma v. Satish Chandra (an eight-judge bench) and Kharak Singh v. Uttar Pradesh (a five-judge bench). However, a subsequent eleven-judge bench found that fundamental rights were not to be construed as distinct, unrelated rights, thereby upholding the dissenting view in Kharak Singh. This also formed the basis of later decisions by smaller benches of the Supreme Court which expressly recognized the right to privacy.
It was in this context that a Constitution Bench was set up and concluded that there was a need for a nine-judge bench to determine whether there was a fundamental right to privacy within the Constitution.
The Petitioner argued before the nine-judge bench that this right was an independent right, guaranteed by the right to life with dignity under Article 21 of the Constitution. The Respondent submitted that the Constitution only recognized personal liberties which may incorporate the right to privacy to a limited extent. The Court considered detailed arguments on the nature of fundamental rights, constitutional interpretation and the theoretical and philosophical bases for the right to privacy as well as the nature of this right.
The nine-judge bench of the Supreme Court unanimously recognized that the Constitution guaranteed the right to privacy as an intrinsic part of the right to life and personal liberty under Article 21. The Court overruled M.P. Sharma, and Kharak Singh in so far as the latter did not expressly recognize the right to privacy.
The right to privacy was reinforced by the concurring opinions of the judges in this case which recognized that this right includes autonomy over personal decisions (e.g. consumption of beef), bodily integrity (e.g. reproductive rights) as well as the protection of personal information (e.g. privacy of health records). The concurring judgments included specific implications of this right, some of which are illustrated below:
J. Chandrachud (on behalf of himself, C.J. Kehar, J. Agrawal and J. Nazeer): this opinion stated that privacy was not surrendered entirely when an individual is in the public sphere. Further, it found that the right to privacy included the negative right against State interference, as in the case of criminalization of homosexuality, as well as the positive right to be protected by the State. On this basis, the Judges held that there was a need to introduce a data protection regime in India.
J. Chelameswar: in his opinion, the Judge said that the right to privacy implied a right to refuse medical treatment, a right against forced feeding, the right to consume beef and the right to display symbols of religion in one’s personal appearance etc.
J. Bobde: the Judge observed that consent was essential for distribution of inherently personal data such as health records.
J. Nariman: in this concurring opinion, the Judge classified the facets of privacy into non-interference with the individual body, protection of personal information and autonomy over personal choices.
J. Sapre: the Judge said that, in addition to its existence as an independent right, the right to privacy included an individual’s rights to freedom of expression and movement and was essential to satisfy the constitutional aims of liberty and fraternity which ensured the dignity of the individual.
J. Kaul: the Judge discussed the right to privacy with respect to protection of informational privacy and the right to preserve personal reputation. He said that the law must provide for data protection and regulate national security exceptions that allow for interception of data by the State.
The Court also recognized that the right was not absolute but allowed for restriction where this was provided by law, corresponded to a legitimate aim of the State and was proportionate to the objective it sought to achieve.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The case expands freedom of expression by recognizing privacy as an independently enforceable right, as opposed to a right that is available only as far as it impacts constitutionally guaranteed freedoms. This provides for protection of freedom of expression by recognizing rights such as the right against arbitrary, unregulated State surveillance, the right to express one’s sexual orientation, religious expression and data protection.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
The decision was given by a historic nine-judge bench of the Supreme Court. Therefore, it establishes a binding precedent on all Courts, unless overruled by a larger bench. It is also of wider significance because, by putting the right to privacy at the heart of constitutional debate in the world’s largest democracy, it is likely to provide assistance and inspiration for privacy campaigners around the world.
Let us know if you notice errors or if the case analysis needs revision.