THE last two years have witnessed several decisions on constitutional questions rendered by different constitutional benches of the Supreme Court. Compared to the preceding years, there have, in fact, been a greater number of constitutional benches, consisting of five or more judges, constituted in these years. Some of the decisions rendered by them are truly landmark in the constitutional history of India. The decision rendered by a nine judge bench in Justice K.S. Puttaswamy v. Union of India,¹ whereby it was categorically held that the ‘right to privacy’ has the status of an inviolable fundamental right, undoubtedly belongs to that category. The Bench, though it rendered six separate judgements, was unanimous on the core aspect that the right to privacy is constitutionally protected.

This categorical assertion, prima facie, seems to have infused a new lease of life into the entire scheme of Part III of the Indian Constitution. It must, however, be noted that the real worth of the right to privacy, just as any other fundamental right, depends not entirely on mere recognition. It depends, to a greater extent, on specific attendant details such as the extent to which, and subject to what limitations, it is recognized. Thus, it is necessary to examine all the separate judgements rendered in the case in order to bring out these details for having a clear understanding of the contours of the right to privacy recognized as intrinsic to Part III of the Constitution.

 

It is important to note the necessary facts to understand the decision in its wider, overall context. In K.S. Puttaswamy, the nine judge bench of the apex court was called upon to resolve the apparent contradiction between two sets of judgements on the question as to whether right to privacy is protected as a fundamental right under the scheme of the Constitution of India. The question arose out of a case, where the petitioners challenged the constitutional validity of the scheme launched by the Government of India, popularly known as the ‘Aadhaar card scheme’, which involves collection and compilation of demographic and biometric data of all the residents in India, on the ground, inter alia, that it violates their fundamental right to privacy. It was then being heard by a three judge bench, where the Attorney General for India, appearing for the Union of India, had vehemently argued, relying on certain observations made in M. P. Sharma² and Kharak Singh,³ that there is no fundamental right to privacy in India.

As these were larger bench decisions – the former was rendered by an eight judge bench and the latter by a six judge bench – it was pointed out by him that all the subsequent judgements,⁴ which recognized right to privacy as a fundamental right, were rendered by smaller benches and they did not lay down valid law. Having, thus, noticed the contradictions in the law laid down, the three judge bench referred the question to a larger bench for authoritative adjudication. It travelled first to a five judge bench; as it could not have examined the correctness of the principle laid down by the eight judge bench in an earlier case, the matter came to be placed finally before a nine judge bench.

 

The nine judge bench delivered six separate judgements – some long and some short. The leading opinion was authored by Justice D.Y. Chandrachud, for himself and on behalf of three others. Each of the remaining five judges have penned down separate opinions. There are no explicit disagreements with each other on any aspect but agreements are expressed only in certain respects. As precision and clarity are most often a casualty when multiple judgements are rendered by multi-member benches, the nine judge bench formulated the ‘order of the court’,⁵ which was signed by all the nine judges to clearly indicate, what can be called the unanimous views.

If, as there is no single judgement reflecting the majority view, one were to rely exclusively on the order of the court signed by all to ascertain the ratio laid down in the case, it seems there is, apart from overruling and affirming some of the earlier decisions, only one substantive proposition of law laid down by the bench unanimously viz.: ‘[T]he 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.’⁶

All the nine judges were unanimous in overruling M.P. Sharma and Kharak Singh to the extent they held that right to privacy is not protected under the Constitution and in affirming the correctness of the subsequent decisions enunciating the position that right to privacy is an intrinsic part of fundamental rights. Further, there is one more aspect, which is not stated in the ‘order of the court’ even though all the judges have agreed on it in their respective judgements, i.e. the right to privacy, which is considered to be an intrinsic part of Part III of the Constitution, is ‘not absolute.’ All the judges have opined so in their respective judgements and yet it was not explicitly stated in the order of the court as they might have considered it to be too axiomatic to require an explicit statement.

The real worth of right to privacy, as stated before, does not depend entirely on mere recognition. In the ‘order of the court’, the right to privacy is only ‘recognized’ as intrinsic to Part III and nothing more. If this is considered to be the only binding principle emanating from the nine judge bench of the Supreme Court, it does not go too far in infusing a new lease of life into the fundamental rights guaranteed in the Constitution of India. A lot depends on the specifics and there seems to be, on the face of it, no unanimity on any of them.

In this context, it is important to examine all the judgements delivered in the case to ascertain whether there are any other principle(s) of law laid down in the case, which have the endorsement of the majority. It may be noted that the principles laid down by the majority are as valid and binding as that of the ones laid down unanimously by the bench. They too have precedential value.

 

Most of the Constitution benches constituted in the recent past have delivered what may be called ‘plurality decisions’⁷, also known as ‘no-clear-majority decisions’,⁸ where judges agree upon conclusions but not in one voice or upon a single rationale. It is substantially difficult to ascertain the principles in plurality decisions to which precedential value can be attributed because, as pointed out by Linda Novak, ‘they do not provide single line of reasoning supported by a clear majority of the Court.’⁹ Both the results and reasoning are to be seen while ascertaining the ratio in a case and, thus, the fusion between the two is very much essential.

 

In K.S.Puttaswamy¹⁰ also there is no single clear majority judgement delivered. There are, as noted above, six judgements. The leading judgement¹¹ was authored by Justice D.Y. Chandrachud, for himself and on behalf of three others viz., Chief Justice J.S. Khehar, Justice R.K. Agrawal and Justice S. Abdul Nazeer. A common judgement delivered by four judges in a nine judge bench cannot be considered as a majority judgement. All the other judges on the bench viz. Justice J. Chelameswar, Justice S.A. Bobde, Justice Abhay Manohar Sapre, Justice Rohinton Fali Nariman and Justice Sanjay Kishan Kaul delivered separate judgements. Though none of the judges who wrote separate judgements expressed any disagreement, in explicit terms, with any of the view expressed by the others, no one seems to have agreed entirely with any other. There is a clear lack of engagement with each other’s judgement on all aspects while writing separate concurrent judgements.

 

Justice Chelameswar, in his judgement, states that he had the advantage of reading only the judgements of Justice R.F. Nariman and Justice D.Y. Chandrachud. He expressed agreement with them on some aspects and makes no reference to the judgements of others. Justice S.A. Bobde does not explicitly state whose judgement he had the opportunity to read, but he had expressed his agreement with Justice Chelameswar, Justice R.F. Nariman and Justice D.Y. Chandrachud, only with regard to the conclusions recorded by them on the findings in M.P. Sharma and Kharak Singh.

Similarly, Justice R.F. Nariman, has not stated in his judgement as to which other judgements he had gone through. He made no explicit reference to any other judgement. Justice A.M. Sapre, states in his judgement that: ‘I have had the benefit of reading the scholarly opinions of my esteemed learned brothers, J. Chelameswar, S.A. Bobde, Rohinton Fali Nariman and Dr D.Y. Chandrachud, J.J. Having read them carefully, I have nothing more useful to add to the reasoning and the conclusions arrived at by my esteemed brothers in their respective opinions. However, keeping in view the importance of the questions referred to this Bench, I wish to add only few words of concurrence of my own.’

Justice Sapre does not, however, clearly state with whom he is concurring and on what aspects. Can it be construed to mean that he had concurred with all the four on all aspects that they had dealt with and only added a ‘few words’ in addition? If so construed, it is possible to hold that the leading judgement authored by Justice D.Y. Chandrachud for himself and on behalf of three others is a majority judgement since Justice A.M. Sapre, has concurred with them. If the judgement rendered by Justice D.Y. Chandrachud is considered to be the majority judgement, then the precedential value can be attributed to all the propositions of law laid down by him in his judgement. He has clearly, distinctly and elegantly articulated them in the conclusion.¹² They are substantial value additions to the fundamental rights jurisprudence developed in the country and certainly have the effect of enhancing the constitutional protection to various rights, both enumerated and unenumerated.

But, the difficulty in construing his expression of ‘concurrence’ as concurrence with all the four judges on all aspects they have touched upon in their respective judgements is that there is no agreement among the four of them on all aspects. On some aspects they have expressed divergent opinions. For example, on the question of whether notions of substantive due process can be incorporated into Article 21 of the Constitution, Justice R.F. Nariman and Justice D.Y. Chandrachud are not on the same page.¹³ Similarly, Justice Chelameswar and Justice D.Y. Chandrachud have expressed divergent opinions on the test to be applied for determining the validity of limitations imposed on the right to privacy. So, obviously Justice A.M. Sapre could not have possibly agreed with all the four of them on all aspects. His ‘concurrence’ should not, however, be construed to be of no legal significance. It should be taken to mean that he has concurred with all the four judgements on all aspects excepting those on which they had expressed divergent opinions.

 

Lastly, the judgement of Justice S.K. Kaul where he stated that he had the benefit of reading only the opinions of Justice R.F. Nariman and Justice D.Y. Chandrachud. He had, in his judgement, expressed agreement with them on certain aspects.

 

It is evident from the above that the judgements of Justice D.Y. Chandrachud and Justice R.F. Nariman have been referred to by all the other judges but they had not referred to the judgement of any other judge explicitly. They made no explicit reference to the judgements rendered by each other either. Even though they had expressed divergent opinions on the question as to whether the notions of substantive due process can be read into Article 21 of the Constitution, there is no engagement with each other’s views. Another important aspect to be noted is that none of the judges claimed to have read the judgements written by all the other judges on the bench, who have delivered separate opinions. Even Justice A.M. Sapre, who had referred to the judgements of Justice Chelameswar, Justice S.A. Bobde, Justice R.F. Nariman and Justice D.Y. Chandrachud, did not refer to the one authored by Justice S.K. Kaul.

Writing separate judgements without constructively engaging with the judgements of others and expressing, as clearly as possible, the points of agreement and disagreement with supporting reasons, may, sometimes, create ambiguities and defeat the very purpose of constituting larger benches, i.e. authoritative adjudication of disputed questions of law and exposition of correct legal position. Writing separate judgements, when there is no disagreement to express, simply to make some addition in view of the importance of the matter, without fully engaging at least with the leading judgement and clearly concurring with the pro-positions laid down therein, might weaken the force of law laid down in the leading judgement.

 

It may be noted that when the apex court judges lay down the propositions of law, they are not only resolving particular controversies involved in a case at hand but they are also meant to provide guidance for lower courts and smaller benches in deciding similar cases in future. That is the most important function of the apex court, particularly of larger benches. As Upendra Baxi points out, what the judges ‘say and mean has a community-wide importance.’¹⁴ He had emphasized on the need to maintain clarity and precision in opinion writing. He observed thus:

‘If appellate judges are to make law (as they have to and do), they must adopt standards of craftsmanship at least equal to those of legislative draftmen. Appellate judges are not entitled to say what they do not mean or to mean what they do not say. For what they say and mean has a community-wide importance. Accordingly, they are under a duty to decide first what is "necessary" to decide, and then decide it.’¹⁵

This needs to be taken serious note of and adhered to by the apex judges while writing judgements or opinions. Further, it may be apposite in this context, to refer to the provision contained in clause (5) of Article 145 of the Constitution of India and understand its implications.¹⁶ Does this provision allow the judges in a multi-members bench to write separate judgements or opinions unless they have some point of disagreement, either on reasoning or on conclusion, with the leading (either majority or non-majority) judgement? Does this provision impose an obligation on the judges to have proper consultations and discussions and exchange draft judgements for the consideration of each other? If the first question is answered in the negative and the second in the affirmative, it means that writing separate judgements is permissible only when they disagree either on the conclusion or on the reasoning. These questions seem to be res integra.

 

As regards discerning binding principles of law in cases, where there is no majority judgement, a two judge bench of the apex court, consisting of Justice A.M. Sapre and Justice Dinesh Maheshwari has laid down a new pro-position of law in one of the recent cases. In Kaikhosru (Chick) Kavasji Framji v. Union of India,¹⁷ the bench relying on an English case,¹⁸ opined that in cases where judges in the bench deliver multiple judgements, even proposition of law contained in a (non-majority) judgement, if not dissented or contradicted by others, is to be treated as ‘a law by majority and is thus a law laid down by the Court under Article 141 of the Constitution.’¹⁹

If this proposition is relied upon, views expressed in each of the six judgements in K. S. Puttaswamy,²⁰ except on aspects where they differed, are to be considered as majority views. As pointed out before, none of the judges specifically referred to any point of view expressed by the others and recorded his dissent on such points. But there are certain aspects on which contrary views were expressed. Excepting those, all other views expressed in each of the judgements, whether or not the number of judges constituting majority endorsed them, can be treated as majority views. However, in the opinion of the author, the correctness of the proposition of law laid down in Kaikhosru,²¹ needs to be carefully examined in the light of provisions contained in clauses (3) and (5) of Article 145 of the Constitution of India and the relevant precedents. It is neither possible nor required to undertake the examination of the same in this paper.

As far as this case is concerned, it is possible to discern majority views without placing any reliance on Kaikhosru. Since judges have expressed concurrence with each other, either explicitly or implicitly, at least on certain aspects, it is possible to identify the propositions of law clearly endorsed by the majority, which would have precedential value. As far as their binding nature is concerned, they are as good as the unanimous views found in the ‘Order of the Court’. Some (not all) of those propositions, which have the clear majority support, are discussed below.

 

The bench unanimously ruled that the right to privacy is an intrinsic part of the rights and freedoms guaranteed under Part III of the Constitution. Even though there is no unanimous ruling on the inherent and inalienable nature of the said right, the majority consider it to be so. Justice D.Y. Chandrachud in his leading judgement, clearly stated that ‘[L]ife and personal liberty are not creations of the Constitution. These rights are recognized by the Constitution as inhering in each individual as an intrinsic and inseparable part of the human element which dwells within.’ This view was endorsed by Justice Chelameswar,²² Justice R.F. Nariman,²³ Justice A.M. Sapre²⁴ and also by Justice S.K. Kaul.²⁵

Further, the contrary position adopted by the majority in ADM, Jabalpur,²⁶ which was so far regarded as overruled impliedly, came to be overruled expressly by Justice D.Y. Chandrachud, Justice R.F. Nariman and Justice S.K. Kaul.

Justice D.Y. Chandrachud said that the view of the majority in the said case was ‘seriously flawed.’²⁷ Referring to the dissenting judgement of Justice H.R. Khanna, he observed that the view taken by him ‘must be accepted, and accepted in reverence for the strength of its thoughts and courage of its convictions.’²⁸ Justice S.K. Kaul while agreeing with the express overruling, stated that the majority ruling ‘was an aberration in the constitutional jurisprudence of our country and the desirability (sic) of burying the majority opinion ten fathom deep with no chance of resurrection.’²⁹

 

The right to privacy is a composite right. Whereas this aspect has been fully endorsed by all the judges, the majority explicitly stated that exhaustive enumeration of various facets of right to privacy is not possible and it can only be done on a case to case basis. Different judges in their respective judgements have recognized several privacy interests, which range from ‘right to be let alone’ to, what may be compendiously referred to as, other forms of personal, informational and decisional privacy interests. It was clearly enunciated that the privacy attaches to person and not to place.³⁰ There is specific emphasis on informational privacy in the judgements authored by Justice D.Y. Chandachud, Justice R.F. Nariman and Justice S.K. Kaul.

 

In the information age, having regard to the capacity of the non-state actors to invade privacy, the need to protect the right to privacy even against them was recognized and emphasized by the majority. Justice D.Y. Chandrachud, in his leading judgement held:

‘Privacy has both positive and negative content. The negative content restrains the State from committing an intrusion upon the life and personal liberty of a citizen. Its positive content imposes an obligation on the State to take all necessary measures to protect the privacy of the individual.’³¹

This view was fully endorsed by Justice S.K. Kaul. He also pointed out that ‘[R]ecognition and enforcement of claims qua non-State actors may require legislative intervention by the State.’³² Justice D.Y. Chandrachud emphasized the need to put in place ‘a robust regime for data protection.’³³ Both of them, however, acknowledged that formulation of a data protection regime is a complex exercise, which requires striking of proper balance between ‘privacy interests’ and ‘legitimate state interests.’

Justice D.Y. Chandrachud, in his leading judgement, observed that ‘[T]he guarantee of constitutional rights does not depend upon their exercise being favourably regarded by majoritarian opinion.’³⁴ Further, while recognizing ‘sexual orientation’ as an essential attribute of privacy, he opined that the same cannot be denied only on the ground that a miniscule fraction of the country’s population claims it. He completely discredited one of the grounds on which a two judge bench, in Suresh Kumar Koushal v. Naz Foundation,³⁵ upheld the constitutional validity of Section 377 of the Indian Penal Code. The said bench had ruled, inter alia, that since only a miniscule fraction of the country’s population is affected by it, there is no basis for declaring the said provision as unconstitutional. Justice S.K. Kaul expressed concurrence with Justice D.Y. Chandrachud on this aspect as well.³⁶

 

On behalf of the state it was pointed out, in this case, that the framers of the Constitution had considered and expressly rejected the demand for inclusion of the right to privacy into the fundamental rights chapter. Placing reliance on the same, they argued that its inclusion by the court through the process of interpretation would be against the original intent of the framers. It can only be done by amending the Constitution.

Justice R.F. Nariman while rejecting the argument, categorically stated that ‘the doctrine of originalism, which was referred to and relied upon… has no place.’³⁷ He was of the view that ‘the Constitution governs the lives of 125 crore citizens of this country and must be interpreted to respond to the changing needs of the society at different points in time.’³⁸

A similar opinion was expressed by Justice D.Y. Chandrachud as well. In his opinion, the court cannot freeze the content of the constitutional guarantees and provisions to what the founding fathers have perceived in a particular historical context. He said, ‘[A]s the society evolves, so must constitutional doctrine.’³⁹ Justice S.K. Kaul was more ingenious in articulating his views on this aspect. He observed that the very incorporation of Article 368, which confers plenary power to amend the Constitution, ‘is prima facie proof that the Constitution, even during the times of its making was intended to be a timeless document, eternal in nature, organic and living.’⁴⁰

Placing reliance on the said intention, he held that the original intent of the framers of the Indian Constitution itself was to reject ‘originalist interpretations.’ He observed thus:

‘Therefore, the theory of original intent itself supports the stand that the original intention of the makers of the Constitution was to ensure that it does not get weighed down by the originalist interpretations/remain static/fossilized, but changes and evolves to suit the felt need of the times. The original intention theory itself contemplates a Constitution which is organic in nature.’ ⁴¹ He described the Constitution as ‘a Divine Chiranjeevi’⁴² and opined that ‘its all-emcompassing spirit forever grows, but never ages.’⁴³

 

Even the fact that all the judges unanimously recognized the right to privacy, notwithstanding that the framers of the Constitution had considered and rejected it, clearly shows that the ‘originalist’ approach did not find favour with any of them.

These propositions elucidated above, as having majority support, are not exhaustive. One may identify, on a closer reading of the judgements and analysis, many other principles as well. The majority propositions elucidated above have certainly enriched constitutional jurisprudence in India.

 

With regard to restrictions on right to privacy as pointed out earlier, even though all the judges have unanimously and clearly held that the right to privacy is not an absolute right and is subject to restrictions, as regards standards of review of privacy violations, there was no unanimity among the judges.

Justice D.Y. Chandrachud has laid down a threefold test to examine privacy violations, viz., ‘(i) legality, which postulates the existence of law; (ii) need, defined in terms of a legitimate state aim; and (iii) proportionality which ensures a rational nexus between the objects and the means adopted to achieve them.’⁴⁴ While emphasizing that ‘[A]ny curtailment or deprivation of that right would have to take place under a regime of law’,⁴⁵ he had also made it clear that ‘[T]he procedure established by law must be fair, just and reasonable.’⁴⁶ He also pointed out certain instances of legitimate state interests viz., ‘protecting national security, preventing and investigating crime, encouraging innovation and the spread of knowledge, and preventing the dissipation of social welfare benefits.’⁴⁷

Justice S.K. Kaul had laid down a fourfold test.⁴⁸ Though, somewhat differently formulated, the contents of his test are identical to the contents of the threefold test laid down by Justice D.Y. Chandrachud. What Justice S.K. Kaul added as a fourth point, i.e. ‘[T]here must be procedural guarantees against abuse of such interference’ is very much part of Justice D.Y. Chandrachud’s threefold test. When he said, as pointed out above, that the curtailment of privacy should take place only under a regime of law, which lays down just, fair and reasonable procedure, he also meant, it is axiomatic to state, that there must be procedural safeguards. Thus, it can be treated as a test laid down by the majority. Justice S.K. Kaul’s formulation, however, seems to be better. Since all the four tests have been formulated distinctively, they can be readily applied in future cases for examining privacy violations.

 

Justice Chelameswar had proposed a twofold test. According to him, privacy invasions shall be examined on ‘just, fair and reasonable standards per Article 21 plus the amorphous standard of "compelling state interest".’⁴⁹ He, however, qualified it by stating ‘[O]nly in privacy claims which deserve the strictest scrutiny is the standard of compelling State interest to be used. As for others, the just, fair and reasonable standard under Article 21 will apply.’⁵⁰ Justice S.A. Bobde while endorsing the ‘compelling state interest’ doctrine,⁵¹ opined:

‘At a minimum, since privacy is always integrated with personal liberty, the constitutionality of the law which is alleged to have invaded into a rights bearer’s privacy must be tested by the same standards by which a law which invades personal liberty under Article 21 is liable to be tested.’⁵²

In addition, he further added, that since privacy imbues every constitutional right, ‘interference with it by the state must be tested against whichever one or more Part III guarantees whose enjoyment is curtailed.’⁵³ Justice R.F. Nariman expressed similar views.⁵⁴ Justice A.M. Sapre did not lay down any tests, but he only opined that the state is entitled to impose reasonable restrictions on right to privacy ‘on the basis of social, moral and compelling public interests in accordance with law.’⁵⁵

 

One of the most important aspects to be noted is the introduction of the US doctrine of ‘compelling state interest’. Even though only Justice Chelameswar and Justice S.A. Bobde⁵⁶ used the exact phrase, others seem to have meant the same even though they used different phrases. Justice D.Y. Chandrachud and Justice R.F. Nariman refer to it as ‘legitimate state interests’;⁵⁷ Justice A.M. Sapre used the phrase ‘compelling public interests’⁵⁸ and Justice S.K. Kaul refer to it as ‘legitimate aim.’⁵⁹

Reading the doctrine of compelling state interest into Article 21 certainly enhances the constitutional protection to rights guaranteed thereunder. In addition to the existing just, fair and reasonable procedure requirement, the court can also examine the question of necessity in terms of compelling state interest. If this is so, it is also a significant contribution of the privacy judgement to the fundamental rights jurisprudence in India.

 

The recognition of right to privacy, particularly as intrinsic to all the rights and freedoms expressly conferred under Part III of the Constitution, has undoubtedly strengthened all those rights and freedoms. The propositions of law laid down by the majority have made the right to privacy and other fundamental rights more robust. Apart from significantly enriching fundamental rights jurisprudence in India, the judgements have clearly paved the way for keeping it abreast with the time even in the future. Owing to the majority ruling on the positive dimensions of the right to privacy, the state is now duty bound to put in place a robust data protection regime to protect privacy against the possible invasion by non-state actors.

While recognizing the right to privacy as a constitutionally protected right, judges did not overlook legitimate state interests. They also recognized that the right is not absolute and can be subjected to reasonable restrictions. The majority emphasized the need to maintain proper balance. Though, for the petitioners, this was not even a battle half won in their fight against aadhaar, recognition of the right to privacy as a constitutional right did place them on a somewhat level playing field to fight the original aadhaar case. This is no doubt a landmark case in the constitutional history of India. It has cleared certain ambiguities and, most importantly, paved the way for future expansion of rights.

As Justice S.K. Kaul concluded: ‘[T]he old order changeth yielding place to new.’ The real test now is in applying these abstract principles while deciding concrete issues arising out of the invasion of privacy. When the law is clear, it is important to ensure that it does not become elusive in its application.

 

Footnotes:

1. (2017) 10 SCC 1.

2. M. P. Sharma v. Satish Chandra, District Magistrate, Delhi (1954) SCR 1077.

3. Kharak Singh v. State of Uttar Pradesh (1964) 1 SCR 332.

4. Gobind v. State of M.P. (1975) 2 SCC 148; R. Rajgopal v. State of T.N. (1994) 6 SCC 632; People’s Union for Civil Liberties v. Union of India (1997) 1 SCC 301; Mr. ‘X’ v. Hospital ‘Z’ (1998) 8 SCC 296; District Registrar and Collector, Hyderabad v. Canara Bank (2005) 1 SCC 496 and Thalappalam Service Coop. Bank Ltd. v. State of Kerala (2013) 16 SCC 82.

5. Justice K.S. Puttaswamy v. Union of India, at paras 651, 652, 652.1, 652.2, 652.3 and 652.4.

6. Id., para, 652.3.

7. Linda Novak, ‘The Precedential Value of Supreme Court Plurality Decisions’ 80(4) Columbia Law Review (May 1980), pp. 756-781.

8. Ibid.

9. Id. at 756.

10. Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.

11. Ibid.

12. See Id., paras 316 to 328.

13. See Id., para 296 (Per D.Y. Chandrachud J.) and paras 451 and 477 (Per R. F. Nariman J.).

14. Upendra Baxi, ‘The Constitutional Quicksands of Kesavananda Bharati and the Twenty-Fifth Amendment’, 1 SCJ (1974), p. 45.

15. Ibid.

16. Art. 145 (5) reads: ‘No judgment and no such opinion shall be delivered by the Supreme Court save with the concurrence of a majority of the Judges present at the hearing of the case, but nothing in this clause shall be deemed to prevent a Judge who does not concur from delivering a dissenting judgment or opinion.’

17. C. A. No. 5574 of 2009, Date of Judgment, 15 March 2019.

18. The Guardians of the Poor of the West Derby Union v. The Guardians of the Poor of the Atcham Union, XXIV Queens Bench 117 (1889).

19. C. A. No. 5574 of 2009, Date of Judgment, 15 March 2019 at para 56.

20. Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.

21. C. A. No. 5574 of 2009, Date of Judgment, 15 March 2019

22. Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1 at para 351.

23. Id., para 532.

24. Id., para 557.

25. Id., para 649.

26. ADM, Jabalpur v. Shivakant Shukla (1976) 2 SCC 521.

27. Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1at para 136.

28. Id., para 137.

29. Id., para 649.

30. See Id., para 323 (Per D. Y. Chandrachud, J.) and para 403 (Per S. A. Bobde, J.)

31. Id., para 326.

32. Id., para 584.

33. Id., para 328.

34. Id., para 144.

35. (2014) 1 SCC 1.

36. Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1 at para 647.

37. Id., para 502.

38. Id., para 476.

39. Id., para 130.

40. Id., para 601.

41. Id., para 602.

42. Id., para 599.

43. Id., para 617.

44. Id., para 325.

45. Id., para 313.

46. Ibid.

47. Id., para 328.

48. Id., para 638.

49. Id., para 378.

50. Id., para 380.

51. Id., para 419.

52. Id., para 426.

53. Id., para 427.

54. Id., para 488.

55. Id., para 567.

56. Id., para 378 (Per J. Chelameswar J.) and para 419 (Per S. A. Bobde, J.)

57. Id., para 325 (Per D. Y. Chandrachud, J.) and para 488 (Per R. F. Nariman, J.)

58. Id., para 567.

59. Id., para 638.